1
|
NAMES OF REPORTING PERSONS
|
|
|
||
|
|
|
|||
Brown & Williamson Holdings, Inc.
|
|
|
|||
|
|
||||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
|
☐
|
||
(b)
|
☐
|
||||
|
|
||||
3
|
SEC USE ONLY
|
|
|
||
|
|
|
|||
|
|
||||
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS)
|
|
|
||
OO
|
|
|
|||
|
|
||||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
|
|
☐
|
||
|
|
||||
|
|
||||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
|
|
||
Delaware
|
|
|
|||
|
|
||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
|
|
|
|
0
|
|
|
|||
|
|
||||
8
|
SHARED VOTING POWER
|
|
|
||
446,668,038
|
|
|
|||
|
|
||||
9
|
SOLE DISPOSITIVE POWER
|
|
|
||
0
|
|
|
|||
|
|
||||
10
|
SHARED DISPOSITIVE POWER
|
|
|
||
446,668,038
|
|
|
|||
|
|
||||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
|
|
|
||
446,668,038
|
|
|
|||
|
|
||||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
|
|
☐
|
||
|
|
||||
|
|
||||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
|
||
31.3%
|
|
|
|||
|
|
||||
14
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
|
|
|
||
CO
|
|
|
|||
|
|
1
|
NAMES OF REPORTING PERSONS
|
|
|
||
|
|
|
|||
Louisville Securities Limited
|
|
|
|||
|
|
||||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
|
☐
|
||
(b)
|
☐
|
||||
|
|
||||
3
|
SEC USE ONLY
|
|
|
||
|
|
|
|||
|
|
||||
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS)
|
|
|
||
AF, WC, BK and OO
|
|
|
|||
|
|
||||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
|
|
☐
|
||
|
|
||||
|
|
||||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
|
|
||
England and Wales
|
|
|
|||
|
|
||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
|
|
|
|
0
|
|
|
|||
|
|
||||
8
|
SHARED VOTING POWER
|
|
|
||
601,368,171*
|
|
|
|||
|
|
||||
9
|
SOLE DISPOSITIVE POWER
|
|
|
||
0
|
|
|
|||
|
|
||||
10
|
SHARED DISPOSITIVE POWER
|
|
|
||
601,368,171*
|
|
|
|||
|
|
||||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
|
|
|
||
601,368,171*
|
|
|
|||
|
|
||||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
|
|
☐
|
||
|
|
||||
|
|
||||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
|
||
42.2%
|
|
|
|||
|
|
||||
14
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
|
|
|
||
CO
|
|
|
|||
|
|
1
|
NAMES OF REPORTING PERSONS
|
|
|
||
|
|
|
|||
British American Tobacco p.l.c.
|
|
|
|||
|
|
||||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
|
(a)
|
☐
|
||
(b)
|
☐
|
||||
|
|
||||
3
|
SEC USE ONLY
|
|
|
||
|
|
|
|||
|
|
||||
4
|
SOURCE OF FUNDS (SEE INSTRUCTIONS)
|
|
|
||
AF, WC, BK and OO
|
|
|
|||
|
|
||||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
|
|
☐
|
||
|
|
||||
|
|
||||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
|
|
|
||
England and Wales
|
|
|
|||
|
|
||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
|
7
|
SOLE VOTING POWER
|
|
|
|
0
|
|
|
|||
|
|
||||
8
|
SHARED VOTING POWER
|
|
|
||
601,368,171*
|
|
|
|||
|
|
||||
9
|
SOLE DISPOSITIVE POWER
|
|
|
||
0
|
|
|
|||
|
|
||||
10
|
SHARED DISPOSITIVE POWER
|
|
|
||
601,368,171*
|
|
|
|||
|
|
||||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
|
|
|
||
601,368,171*
|
|
|
|||
|
|
||||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
|
|
☐
|
||
|
|
||||
|
|
||||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
|
|
|
||
42.2%
|
|
|
|||
|
|
||||
14
|
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
|
|
|
||
CO
|
|
|
|||
|
|
Brown & Williamson Holdings, Inc.
|
|||
|
By:
|
/s/ Timothy J. Hazlett | |
Name: Timothy J. Hazlett | |||
Title: Director | |||
Louisville Securities Limited
|
|||
|
By:
|
/s/ Steve Dale | |
Name: Steve Dale | |||
Title: Director | |||
British American Tobacco p.l.c.
|
|||
|
By:
|
/s/ Nicola Snook | |
Name: Nicola Snook
|
|||
Title: Company Secretary | |||
Exhibit
Number
|
|
Description
|
|
|
|
99.12
|
|
Agreement and Plan of Merger, dated January 16, 2017, by and among British American Tobacco p.l.c., BATUS Holdings Inc., Flight Acquisition Corporation and Reynolds American Inc.
|
99.13
|
Term Loan Facilities Agreement, dated January 16, 2017, by and among B.A.T. International Finance p.l.c. and B.A.T Capital Corporation, as original borrowers, BAT, as guarantor, HSBC Bank plc, as agent, HSBC Bank USA, National Association, as U.S. agent, and the financial institutions party thereto, as mandated lead arrangers and banks
|
|
99.14
|
Press Release, issued by British American Tobacco p.l.c., dated January 17, 2017
|
ARTICLE I
The Merger |
|
SECTION 1.01. The Merger
|
2
|
SECTION 1.02. Closing
|
2
|
SECTION 1.03. Effective Time
|
2
|
SECTION 1.04. Effects
|
2
|
SECTION 1.05. Change in Structure
|
2
|
SECTION 1.06. Articles of Incorporation and Bylaws of the Surviving Corporation
|
3
|
SECTION 1.07. Directors
|
3
|
SECTION 1.08. Officers
|
3
|
ARTICLE II
Effect of the Merger on the Capital Stock of the Constituent Corporations |
|
SECTION 2.01. Effect on Capital Stock
|
3
|
SECTION 2.02. Exchange of Shares
|
6
|
ARTICLE III
Representations and Warranties of the Company |
|
SECTION 3.01. Organization, Standing and Power
|
10
|
SECTION 3.02. The Company Subsidiaries; Equity Interests
|
11
|
SECTION 3.03. Capital Structure
|
11
|
SECTION 3.04. Authority; Execution and Delivery; Enforceability
|
12
|
SECTION 3.05. No Conflicts; Consents
|
13
|
SECTION 3.06. SEC Documents; Undisclosed Liabilities
|
15
|
SECTION 3.07. Disclosure Documents
|
17
|
SECTION 3.08. Absence of Certain Changes or Events
|
17
|
SECTION 3.09. Taxes
|
18
|
SECTION 3.10. Benefits and Labor Matters; ERISA Compliance
|
18
|
SECTION 3.11. Litigation
|
21
|
SECTION 3.12. Compliance with Applicable Laws; Regulatory Matters
|
21
|
SECTION 3.13. Title to Properties
|
21
|
SECTION 3.14. Intellectual Property
|
22
|
SECTION 3.15. Contracts
|
23
|
SECTION 3.16. Brokers; Schedule of Fees and Expenses
|
25
|
SECTION 3.17. Opinions of Financial Advisors
|
25
|
SECTION 3.18. Insurance
|
25
|
ARTICLE IV
Representations and Warranties of Parent, BATUS and Sub |
|
SECTION 4.01. Organization, Standing and Power
|
26
|
SECTION 4.02. Sub
|
27
|
SECTION 4.03. Capital Structure
|
27
|
SECTION 4.04. Authority; Execution and Delivery; Enforceability
|
28
|
SECTION 4.05. No Conflicts; Consents
|
29
|
SECTION 4.06. Public Reports; Undisclosed Liabilities
|
30
|
SECTION 4.07. Disclosure Documents
|
31
|
SECTION 4.08. Absence of Certain Changes or Events
|
32
|
SECTION 4.09. Taxes
|
33
|
SECTION 4.10. Litigation
|
33
|
SECTION 4.11. Compliance with Applicable Laws; Regulatory Matters
|
34
|
SECTION 4.12. Intellectual Property
|
34
|
SECTION 4.13. Brokers; Schedule of Fees and Expenses
|
35
|
SECTION 4.14. Sufficient Funds; Financing
|
35
|
ARTICLE V
Covenants Relating to Conduct of Business |
|
SECTION 5.01. Conduct of Business
|
36
|
SECTION 5.02. No Solicitation by the Company
|
42
|
SECTION 5.03. No Solicitation by Parent
|
46
|
SECTION 5.04. Parent Recommendation and Vote
|
50
|
SECTION 5.05. Company Subsidiary Vote
|
50
|
ARTICLE VI
Additional Agreements |
|
SECTION 6.01. Preparation of Proxy Statement, Form F-4 and Parent Circular; Shareholders Meeting
|
50
|
SECTION 6.02. Access to Information; Confidentiality
|
54
|
SECTION 6.03. Reasonable Best Efforts; Notification
|
55
|
SECTION 6.04. Financing
|
56
|
SECTION 6.05. Equity-Based Compensation
|
59
|
SECTION 6.06. Employee Benefit Matters
|
61
|
SECTION 6.07. Indemnification
|
63
|
SECTION 6.08. Fees and Expenses
|
64
|
SECTION 6.09. Public Announcements
|
67
|
SECTION 6.10. Stock Exchange Listing
|
67
|
SECTION 6.11. Stock Exchange Delisting and Deregistration
|
67
|
SECTION 6.12. Transaction Litigation
|
68
|
SECTION 6.13. Section 16 Matters
|
68
|
SECTION 6.14. Company’s Auditors
|
68
|
SECTION 6.15. Integration Planning
|
68
|
SECTION 6.16. Company Capitalization
|
68
|
SECTION 6.17. Governance Matters
|
68
|
ARTICLE VII
Conditions Precedent
|
|
SECTION 7.01. Conditions to Each Party’s Obligation to Consummate the Merger
|
69
|
SECTION 7.02. Conditions to Obligations of Parent and Sub
|
70
|
SECTION 7.03. Conditions to Obligation of the Company
|
71
|
ARTICLE VIII
Termination, Amendment and Waiver
|
|
SECTION 8.01. Termination
|
72
|
SECTION 8.02. Effect of Termination
|
73
|
SECTION 8.03. Amendment
|
74
|
SECTION 8.04. Extension; Waiver
|
74
|
SECTION 8.05. Procedure for Termination, Amendment, Extension or Waiver
|
74
|
ARTICLE IX
General Provisions
|
|
SECTION 9.01. Nonsurvival of Representations and Warranties
|
75
|
SECTION 9.02. Notices
|
75
|
SECTION 9.03. Definitions
|
76
|
SECTION 9.04. Interpretation
|
82
|
SECTION 9.05. Severability
|
82
|
SECTION 9.06. Counterparts
|
82
|
SECTION 9.07. Entire Agreement; No Third-Party Beneficiaries
|
82
|
SECTION 9.08. Governing Law; Consent to Jurisdiction
|
83
|
SECTION 9.09. Assignment
|
83
|
SECTION 9.10. Enforcement
|
84
|
SECTION 9.11. Waiver of Jury Trial
|
84
|
Defined Term
|
Section
|
Acceptable Confidentiality Agreement
|
5.02(a)
|
Action
|
9.03
|
ADS Ratio
|
9.03
|
affiliate
|
9.03
|
Agreement
|
Preamble
|
Antitrust Laws
|
6.03(c)
|
Antitrust Restriction
|
7.02(c)
|
Articles of Merger
|
1.03
|
Book-Entry Shares
|
2.01(f)
|
Business Day
|
9.03
|
Cash-Out RSU
|
9.03
|
Certificate
|
2.01(f)
|
Clean Team Agreement
|
9.03
|
Closing
|
1.02
|
Closing Date
|
1.02
|
Code
|
2.02(h)
|
Commonly Controlled Entity
|
9.03
|
Company
|
Preamble
|
Company Adverse Recommendation Change
|
5.02(b)
|
Company Benefit Plans
|
9.03
|
Company Board
|
Recitals
|
Company Bylaws
|
3.01
|
Company Charter
|
3.01
|
Company Disclosure Letter
|
Article III
|
Company DSU
|
9.03
|
Company Material Adverse Effect
|
9.03
|
Company Material Contract
|
3.15(b)
|
Company Notice
|
5.02(b)
|
Company Performance Share
|
9.03
|
Company Personnel
|
9.03
|
Company Recommendation
|
3.04(b)
|
Company RSU
|
9.03
|
Company SEC Documents
|
3.06(a)
|
Company Shareholder Approval
|
3.04(c)
|
Company Shareholders Meeting
|
6.01(c)
|
Company Stock Awards
|
9.03
|
Company Stock Plans
|
9.03
|
Company Subsidiary
|
3.01
|
Company Takeover Proposal
|
5.02(e)
|
Company Termination Fee
|
6.08(b)
|
Company Voting Debt
|
3.03(a)
|
Confidentiality Agreement
|
9.03
|
Confidentiality/Antitrust Protocol
|
9.03
|
Consent
|
3.05(b)
|
Contract
|
3.05(a)
|
Deposit Agreement
|
9.03
|
Disclosure Guidance and Transparency Rules
|
9.03
|
Dissenting Shares
|
2.01(g)
|
EBITDA
|
5.02(e)
|
Effective Time
|
1.03
|
End Date
|
8.01(b)(i)
|
Environmental Law
|
9.03
|
ERISA
|
9.03
|
Excess Shares
|
2.02(i)
|
Exchange Act
|
3.05(b)
|
Exchange Agent
|
2.02(a)
|
Exchange Fund
|
2.02(a)
|
Exchange Ratio
|
9.03
|
FCA
|
4.05(b)
|
Filed Company Contract
|
3.15(a)
|
Filed Company SEC Documents
|
3.06(c)
|
Financing
|
9.03
|
Form 8-A
|
4.05(b)
|
Form F-4
|
4.05(b)
|
Form F-6
|
4.05(b)
|
FSMA
|
9.03
|
GAAP
|
3.06(b)
|
Governance Agreement
|
Recitals
|
Governmental Entity
|
3.05(b)
|
HSR Act
|
3.05(b)
|
HSR Filing
|
6.03(a)
|
IFRS
|
4.06(a)
|
Indebtedness
|
9.03
|
Intellectual Property
|
9.03
|
Judgment
|
3.05(a)
|
Knowledge
|
9.03
|
Law
|
3.05(a)
|
Liens
|
3.02(a)
|
Listing Rules
|
9.03
|
LSE
|
4.06(d)
|
Market Abuse Regulation
|
9.03
|
Material Adverse Effect
|
9.03
|
Maximum Premium
|
6.07(c)
|
Menthol Regulatory Action
|
9.03
|
Merger
|
Recitals
|
Merger Consideration
|
2.01(c)
|
NCBCA
|
1.01
|
New Term Loan Facility
|
9.03
|
NYSE
|
2.02(i)
|
Parent
|
Preamble
|
Parent ADSs
|
Recitals
|
Parent Articles
|
4.03(a)
|
Parent Board
|
Recitals
|
Parent Circular
|
4.05(b)
|
Parent Disclosure Letter
|
Article IV
|
Parent Entities
|
Preamble
|
Parent Material Adverse Effect
|
9.03
|
Parent Ordinary Shares
|
Recitals
|
Parent Prospectus
|
4.05(b)
|
Parent Public Reports
|
4.06(a)
|
Parent Recommendation
|
4.04(b)
|
Parent Share Awards
|
9.03
|
Parent Shareholder Approval
|
4.04(d)
|
Parent Shareholders Meeting
|
4.05(b)
|
Parent Subsidiary
|
4.01(b)
|
Parent Termination Fee
|
6.08(c)
|
Parent Voting Debt
|
4.03(a)
|
Per Share Cash Consideration
|
2.01(c)(ii)
|
Per Share Stock Consideration
|
2.01(c)(i)
|
Permits
|
3.01
|
person
|
9.03
|
Plan of Merger
|
Recitals
|
Prospectus Rules
|
9.03
|
Proxy Statement
|
3.05(b)
|
Regulatory Requirement
|
6.03(c)
|
Representatives
|
5.02(a)
|
Required Company Shareholder Approvals
|
3.04(c)
|
Restraints
|
7.01(f)
|
RSU Exchange Ratio
|
9.03
|
Sarbanes-Oxley Act
|
3.06(b)
|
Schedule 13E-3
|
3.05(b)
|
SEC
|
3.05(b)
|
Securities Act
|
3.06(b)
|
Sub
|
Preamble
|
Sub Board
|
Recitals
|
Sub Shareholder Approval
|
4.04(c)
|
subsidiary
|
9.03
|
Surviving Common Stock
|
2.01(a)
|
Surviving Corporation
|
1.01
|
Tax Return
|
9.03
|
Taxes
|
9.03
|
Tobacco Litigation
|
9.03
|
Transaction Committee
|
Recitals
|
Transactions
|
1.01
|
UKLA
|
4.05(b)
|
Unaffiliated Shareholder Approval
|
3.04(c)
|
BRITISH AMERICAN TOBACCO P.L.C. | |||
|
by
|
/s/ Robert Casey | |
Name: Robert Casey | |||
Title: Assistnat General Counsel – Corporate | |||
BATUS HOLDINGS INC.
|
|||
|
By:
|
/s/ Brent Cotton | |
Name: Brent Cotton | |||
Title: President | |||
FLIGHT ACQUISITION CORPORATION
|
|||
|
By:
|
/s/ Brent Cotton | |
Name: Brent Cotton | |||
Title: President | |||
REYNOLDS AMERICAN INC. | |||
|
By:
|
/s/ Debra A. Crew | |
Name: Debra A. Crew | |||
Title: President and Chief Executive Officer | |||
US$25,000,000,000
TERM LOAN FACILITIES
|
CLAUSE
|
HEADINGS
|
PAGE
|
1.
|
INTERPRETATION
|
1
|
2.
|
THE FACILITIES
|
15
|
3.
|
PURPOSE
|
17
|
4.
|
CONDITIONS PRECEDENT
|
18
|
5.
|
ADVANCES
|
19
|
6.
|
REPAYMENT
|
20
|
7.
|
PREPAYMENT AND CANCELLATION
|
20
|
8.
|
INTEREST
|
24
|
9.
|
PAYMENTS
|
28
|
10.
|
TAXES
|
31
|
11.
|
MARKET DISRUPTION
|
35
|
12.
|
INCREASED COSTS
|
37
|
13.
|
ILLEGALITY AND MITIGATION
|
38
|
14.
|
GUARANTEE
|
38
|
15.
|
REPRESENTATIONS AND WARRANTIES
|
40
|
16.
|
UNDERTAKINGS
|
43
|
17.
|
FINANCIAL COVENANT
|
45
|
18.
|
DEFAULT
|
47
|
19.
|
THE ADMINISTRATIVE PARTIES
|
49
|
20.
|
FEES
|
55
|
21.
|
EXPENSES
|
56
|
22.
|
STAMP DUTIES
|
57
|
23.
|
INDEMNITIES
|
57
|
24.
|
EVIDENCE AND CALCULATIONS
|
58
|
25.
|
AMENDMENTS AND WAIVERS
|
58
|
26.
|
CHANGES TO THE PARTIES
|
59
|
27.
|
DISCLOSURE OF INFORMATION AND KNOW YOUR CUSTOMER REQUIREMENTS
|
66
|
28.
|
SET-OFF
|
67
|
29.
|
PRO RATA SHARING
|
68
|
30.
|
SEVERABILITY
|
68
|
31.
|
COUNTERPARTS
|
68
|
32.
|
NOTICES
|
68
|
33.
|
LANGUAGE
|
70
|
34.
|
JURISDICTION
|
70
|
35.
|
WAIVER OF TRIAL BY JURY
|
71
|
36.
|
GOVERNING LAW
|
71
|
37.
|
US PATRIOT ACT
|
71
|
SCHEDULE 1 ORIGINAL PARTIES
|
72
|
SCHEDULE 2 CONDITIONS PRECEDENT DOCUMENTS
|
73
|
SCHEDULE 3 FORM OF REQUEST
|
75
|
SCHEDULE 4 FORMS OF ACCESSION DOCUMENTS
|
76
|
SCHEDULE 5 FORM OF CONFIDENTIALITY UNDERTAKING
|
81
|
SCHEDULE 6 FORM OF INCREASE CONFIRMATION
|
82
|
SCHEDULE 7 EXTENSION NOTICE
|
84
|
SCHEDULE 8 SELECTION NOTICE
|
85
|
(1) |
B.A.T. INTERNATIONAL FINANCE P.L.C. (registered number 1060930) and B.A.T CAPITAL CORPORATION (registered number 0911777) as original borrowers (the "Original Borrowers");
|
(2) |
BRITISH AMERICAN TOBACCO P.L.C. as guarantor (the "Guarantor");
|
(3) |
THE FINANCIAL INSTITUTIONS listed in Part I (Arrangers) of Schedule 1 (Original Parties) as mandated lead arrangers (the "Arrangers");
|
(4) |
THE FINANCIAL INSTITUTIONS listed in Part II (Banks and Commitments) of Schedule 1 (Original Parties) as banks (the "Original Banks");
|
(5) |
HSBC BANK PLC as agent (in this capacity the "Agent"); and
|
(6) |
HSBC BANK USA, NATIONAL ASSOCIATION (in this capacity the "US Agent")
|
1. |
INTERPRETATION
|
1.1 |
Definitions
|
(a) |
the aggregate amount of the Original US Dollar Amount of its share of any outstanding Advances under that Facility; and
|
(b) |
in relation to any proposed Advance, the Original US Dollar Amount of its share in any other Advance that is due to be made under that Facility on or before the date of such Advance.
|
(a) |
any liability to repay the principal of or to pay interest on borrowed money or deposits; or
|
(b) |
any liability:
|
(i) |
under or pursuant to any letter of credit, acceptance credit facility or note purchase facility; or
|
(ii) |
in relation to any foreign currency transaction or any purchase price for property or services payment of which is deferred for a period in excess of 180 days after the later of taking possession or becoming the legal owner thereof or the service being rendered; or
|
(iii) |
with regard to any guarantee or indemnity in respect of repayment of obligations referred to in paragraphs (i) and (ii) above or of any other borrowed money.
|
(a) |
relates to an Original Bank and:
|
(i) |
where the Borrower is an Original Borrower, is filed with HM Revenue & Customs at least 30 working days prior to the date of the first interest payment after the Signing Date; or
|
(ii) |
where the Borrower is an Additional Borrower, is filed with HM Revenue & Customs at least 30 working days prior to the date of the first interest payment after the date on which that Borrower becomes an Additional Borrower; or
|
(b) |
relates to a Bank that is a New Bank or an Increase Bank and:
|
(i) |
where the Borrower is a Borrower as at the relevant Novation Date (or date on which the increase in Commitments described in the relevant
|
|
Increase Confirmation takes effect) is filed with HM Revenue & Customs at least 30 working days prior to the date of the first interest payment after that Novation Date (or date on which the increase in Commitments described in the relevant Increase Confirmation takes effect); or
|
(ii) |
where the Borrower is not a Borrower as at the relevant Novation Date (or date on which the increase in Commitments described in the relevant Increase Confirmation takes effect), is filed with HM Revenue & Customs at least 30 working days prior to the date of the first interest payment after the date on which that Borrower becomes an Additional Borrower.
|
(a) |
money borrowed or raised and debit balances at banks;
|
(b) |
any bond, note, loan stock, debenture or similar debt instrument;
|
(c) |
acceptance credit facilities;
|
(d) |
receivables sold or discounted (otherwise than on a non-recourse basis);
|
(e) |
finance leases and hire purchase contracts which are required to be capitalised under generally accepted accounting principles in the UK;
|
(f) |
any other transaction having the commercial effect of a borrowing or raising of money excluding trade credit in the ordinary course of business; and
|
(g) |
guarantees in respect of indebtedness of any person falling within any of paragraphs (a) to (f) (both inclusive) above,
|
(a) |
on which banks and the interbank and foreign exchange markets are open for business in London and, in the case of a day on which any payment is required to be made by an Obligor, in New York; and
|
(b) |
(in relation to a day on which a payment in US Dollars or an Optional Currency (other than euro) is required hereunder) on which banks and the interbank and foreign exchange markets are open for business in New York or in the principal financial centre of the country of such Optional Currency; or
|
(c) |
(in relation to a day on which a payment in euro is required hereunder) which is a Target Day.
|
(a) |
which has failed to make its participation in an Advance available or has notified the Agent that it will not make its participation in an Advance available by the Utilisation Date of that Advance in accordance with Clause 5.5 (Payment of proceeds);
|
(b) |
which has otherwise rescinded or repudiated a Finance Document; or
|
(c) |
with respect to which an Insolvency Event has occurred and is continuing,
|
(i) |
its failure to pay is caused by:
|
(ii) |
that Bank is disputing in good faith whether it is contractually obliged to make the payment in question.
|
(a) |
a material disruption to those payment or communication systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with a Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
(b) |
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
|
(i) |
from performing its payment obligations under the Finance Documents; or
|
(ii) |
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
(a) |
any reportable event, as defined in Section 4043 of ERISA, with respect to an Employee Plan, as to which PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA that it be notified of such event;
|
(b) |
the filing under Section 4041 of ERISA of a notice of intent to terminate any Employee Plan or the termination of any Employee Plan under Section 4041 of ERISA, or the receipt of notice by any US Borrower or any ERISA Affiliate under section 4042 of ERISA from the PBGC for the termination of, or the appointment of a trustee to administer, any Employee Plan;
|
(c) |
any failure by any Employee Plan to satisfy the minimum funding requirements of Sections 412 and 430 of the Code or Section 302 of ERISA applicable to such Employee Plan, in each case whether or not waived;
|
(d) |
the incurrence by any US Borrower or any ERISA Affiliate of any liability with respect to the complete or partial withdrawal, within the meaning of Section 4203 or 4205 of ERISA, of any US Borrower or any ERISA Affiliate from a Employee Plan or Multiemployer Plan;
|
(e) |
the filing under Section 412 of the Code or Section 302 of ERISA of any request for a minimum funding variance with respect to any Employee Plan;
|
(f) |
any US Borrower or any ERISA Affiliate incurring any liability under Title IV of ERISA with respect to the termination of any Employee Plan (other than premiums due and not delinquent under Section 4007 of ERISA); and
|
(g) |
a determination that any Employee Plan is, or is expected to be, in “at risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code).
|
(a) |
the applicable Screen Rate;
|
(b) |
if no Screen Rate is available for the Term of that Advance or overdue amount, the Interpolated Screen Rate for that Advance or overdue amount; or
|
(c) |
if:
|
(i) |
no Screen Rate is available for the Term of that Advance or overdue amount; and
|
(ii) |
it is not possible to calculate an Interpolated Screen Rate for that Advance or overdue amount,
|
(a) |
the first anniversary of the Start Date;
|
(b) |
the second anniversary of the Start Date;
|
(c) |
the First Facility A Extended Maturity Date; or
|
|
(d) |
the First Facility B Extended Maturity Date,
|
(a) |
in relation to an Original Bank, the amount in US Dollars set opposite its name in Part II (Banks and Commitments) of Schedule 1 (Original Parties) and the amount of any other Facility A Commitments transferred to it under this Agreement or assumed by it in accordance with Clause 26.11 (Increase); and
|
(b) |
in relation to any other Bank, the amount in US Dollars of any Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 26.11 (Increase),
|
(a) |
in relation to an Original Bank, the amount in US Dollars set opposite its name in Part II (Banks and Commitments) of Schedule 1 (Original Parties) and the amount of any other Facility B Commitments transferred to it under this Agreement or assumed by it in accordance with Clause 26.11 (Increase); and
|
(b) |
in relation to any other Bank, the amount in US Dollars of any Facility B Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 26.11 (Increase),
|
(a) |
in relation to an Original Bank, the amount in US Dollars set opposite its name in Part II (Banks and Commitments) of Schedule 1 (Original Parties) and the amount of any other Facility C Commitments transferred to it under this Agreement or assumed by it in accordance with Clause 26.11 (Increase); and
|
|
(b) |
in relation to any other Bank, the amount in US Dollars of any Facility C Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 26.11 (Increase),
|
(a) |
in relation to an Original Bank, the amount in US Dollars set opposite its name in Part II (Banks and Commitments) of Schedule 1 (Original Parties) and the amount of any other Facility D Commitments transferred to it under this Agreement or assumed by it in accordance with Clause 26.11 (Increase); and
|
(b) |
in relation to any other Bank, the amount in US Dollars of any Facility D Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 26.11 (Increase),
|
(a) |
on or before the date it becomes a Bank; or
|
(b) |
by not less than five Business Days' notice,
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations or other official guidance;
|
(b) |
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or
|
(c) |
any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a) |
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
|
(b) |
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or
|
(c) |
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, 1 January 2019,
|
(a) |
in relation to Facility A, the Facility A Final Maturity Date;
|
(b) |
in relation to Facility B, the Facility B Final Maturity Date;
|
(c) |
in relation to Facility C, the Facility C Final Maturity Date; and
|
(d) |
in relation to Facility D, the Facility D Final Maturity Date.
|
(a) |
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;
|
(b) |
that Administrative Party otherwise rescinds or repudiates a Finance Document;
|
(c) |
(if that Administrative Party is also a Bank) it is a Defaulting Bank under paragraph (a) or (b) of the definition of "Defaulting Bank"; or
|
(d) |
an Insolvency Event has occurred and is continuing with respect to that Administrative Party;
|
(i) |
its failure to pay is caused by:
|
(ii) |
that Administrative Party is disputing in good faith whether it is contractually obliged to make the payment in question.
|
(a) |
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
|
(b) |
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
|
(c) |
makes a general assignment, arrangement or composition with or for the benefit of its creditors;
|
(d) |
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, all other than by way of an Undisclosed Administration, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
|
(e) |
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:
|
(i) |
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or
|
(ii) |
is not dismissed, discharged, stayed or restrained in each case within 21 days of the institution or presentation thereof;
|
(f) |
has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank administration proceeding pursuant to Part 3 of the Banking Act 2009;
|
(g) |
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
|
(h) |
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all of its assets, all other than by way of an Undisclosed Administration;
|
(i) |
has a secured party take possession of all or substantially all of its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all of its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 21 days thereafter;
|
(j) |
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (i) (above); or
|
(k) |
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence, in any of the foregoing acts.
|
(a) |
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Term of that Advance or overdue amount; and
|
(b) |
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Term of that Advance or overdue amount,
|
(i) |
in the case of LIBOR, 11.00 a.m.(London time); and
|
(ii) |
in the case of EURIBOR, 11.00 a.m. (Brussels time),
|
(a) |
the applicable Screen Rate;
|
(b) |
if no Screen Rate is available for the Term of that Advance or overdue amount, the Interpolated Screen Rate for that Advance or overdue amount; or
|
(c) |
if:
|
(i) |
no Screen Rate is available for the currency of that Advance or overdue amount; or
|
(ii) |
no Screen Rate is available for the Term of that Advance or overdue amount and it is not possible to calculate an Interpolated Screen Rate for that Advance or overdue amount,
|
(a) |
if any Advances are outstanding, Banks with an aggregate Original US Dollar Amount of Advances and undrawn Commitments at that time of more than 662/3 per cent. of the aggregate Original US Dollar Amount of all Advances then outstanding and undrawn Commitments then in force; or
|
(b) |
if no Advances are outstanding, Banks whose Commitments then aggregate more than 662/3 per cent. of the Total Commitments (or if the Total Commitments have been reduced to zero, aggregated more than 662/3 per cent. of the Total Commitments immediately before the reduction).
|
(a) |
the principal amount of an Advance denominated in US Dollars; or
|
(b) |
the principal amount of an Advance denominated in any other currency, translated into US Dollars on the basis of the Agent's Spot Rate of Exchange on the date of receipt by the Agent of the Request for that Advance.
|
(a) |
is a bank as defined for the purposes of section 879 of the ITA which is making an advance under this Agreement and is within the charge to United Kingdom corporation tax as regards any interest received by it in respect of that advance, or would be within such charge as respects such payment apart from section 18A Corporation Tax Act 2009, which is beneficially entitled to that interest; or
|
(b) |
is resident (as such term is defined in the appropriate double taxation treaty) in a country with which the United Kingdom has an appropriate double taxation treaty under which that institution is entitled to exemption from United Kingdom tax on interest and is entitled to apply for, and has applied for and obtained, approval (and with an effective notice of direction to this effect provided by Her Majesty's Revenue & Customs to the relevant Borrower before the date of payment of the interest in question) under the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 to have interest under this Agreement paid to its Facility Office (being the Facility Office which is beneficially entitled to the interest paid to the relevant Bank under this Agreement) without withholding or deduction for or on account of United Kingdom taxation (and does not carry on business in the United Kingdom through a permanent establishment with which any loan or advance made under this Agreement in respect of which the interest is paid is effectively connected) and for this purpose "double taxation treaty" means any convention or agreement between the government of the United Kingdom and any other government for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains; or
|
c) |
(i) holds a passport under the HMRC DT Treaty Passport scheme and has complied with the obligations in Clause 10.5 (Borrower DTTP Filing); and
|
(a) |
the first day of a Term for an Advance denominated in Sterling; or
|
(b) |
the second Business Day before the first day of a Term for an Advance denominated in any currency other than Sterling.
|
(a) |
in relation to LIBOR, as the rate at which the relevant Reference Bank could borrow funds in the London interbank market; or
|
(b) |
in relation to EURIBOR, as the rate at which the relevant Reference Bank could borrow funds in the European interbank market,
|
(a) |
in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Reuters screen (or any replacement Reuters page which displays that rate); and
|
(b) |
in relation to EURIBOR, the euro interbank offered rate administered by the Banking Federation of the European Union (or any other person which takes over the administration of that rate) for the relevant period displayed on page EURIBOR01 of the Reuters screen (or any replacement Reuters page which displays that rate),
|
(a) |
a subsidiary within the meaning of Section 1159 of the Companies Act 2006; and
|
(b) |
unless the context otherwise requires, a subsidiary undertaking within the meaning of Section 1162(2) of the Companies Act 2006.
|
(a) |
selected by a Borrower in a Request or a Selection Notice by reference to which interest is calculated; or
|
(b) |
by reference to which interest on an overdue amount is calculated.
|
1.2 |
Construction
|
1.2.1 |
In this Agreement, unless the contrary intention appears, a reference to:
|
(A) |
"assets" includes properties, revenues and rights of every description;
|
(B) |
an "authorisation" includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration and notarisation;
|
(C) |
a "month" is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that, if there is no numerically corresponding day in the month in which that period ends, that period shall end on the last Business Day in that calendar month;
|
(D) |
"pro rata" shall mean in proportion to;
|
(E) |
a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
(F) |
"tax" shall mean any tax, levy, impost, duty or other charge or withholding (including backup withholding) of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same);
|
(G) |
the currency of a country is to the lawful currency of that country for the time being, "€" and "euro" is a reference to the single currency of the Participating Member States, "£" and "Sterling" is a reference to the lawful currency of the United Kingdom for the time being, "US$" and "US Dollars" is a reference to the lawful currency of the United States for the time being;
|
(H) |
a provision of a law is a reference to that provision as amended or re-enacted;
|
(I) |
a Clause or a Schedule is a reference to a clause of or a schedule to this Agreement;
|
(J) |
a person includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) or two or more of the foregoing;
|
(K) |
a Finance Document or another document is a reference to that Finance Document or that other document as amended, novated or supplemented; and
|
(L) |
a time of day is a reference to London time.
|
1.2.2 |
Unless the contrary intention appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
1.2.3 |
The index to and the headings in this Agreement are for convenience only and are to be ignored in construing this Agreement.
|
1.2.4 |
The representation and warranty given in Clause 15.11 (Sanctions and Anti-Bribery and Corruption) and the undertaking given in Clause 16.12 (Sanctions and Anti-Bribery and Corruption) (each a “Sanctions Provision”) shall only apply to a Restricted Lender to the extent that the relevant Sanctions Provision would not result in a violation of, conflict with or create a liability under: (i) EU Regulation (EC) 2271/96; (ii) §7 of the German Außenwirtschaftsverordnung (in connection with section 4 paragraph 1 no. 3 of the German Außenwirtschaftsgesetz); or (iii) any similar applicable anti-boycott statute, and in connection with any waiver, determination or direction relating to any part of any Sanctions Provision which does not apply to any Restricted Lender, the Commitment of that Restricted Lender will be excluded for the purpose of determining whether the consent of the requisite majority of Lenders has been obtained or whether the determination or
|
direction by the requisite majority of Lenders has been made (as applicable). For the purposes of this clause 1.2.4 a “Restricted Lender” means a Lender that has notified the Agent and the Parent that a Sanctions Provision may result in a violation of, a conflict with or liability under: (i) EU Regulation (EC) 2271/96; (ii) §7 of the German Außenwirtschaftsverordnung (in connection with section 4 paragraph 1 no. 3 of the German Außenwirtschaftsgesetz); or (iii) any similar applicable anti-boycott statute.
|
1.3 |
Contracts (Rights of Third Parties) Act 1999
|
2. |
THE FACILITIES
|
2.1 |
The Facilities
|
2.1.1 |
a committed multi-currency term loan facility in an aggregate amount equal to the Total Facility A Commitments;
|
2.1.2 |
a committed multi-currency term loan facility in an aggregate amount equal to the Total Facility B Commitments;
|
2.1.3 |
a committed multi-currency term loan facility in an aggregate amount equal to the Total Facility C Commitments; and
|
2.1.4 |
a committed multi-currency term loan facility in an aggregate amount equal to the Total Facility D Commitments.
|
2.2 |
Overall limits under the Facilities
|
(A) |
The aggregate Original US Dollar Amount of all outstanding Facility A Advances shall not at any time exceed the Facility A Total Commitments at that time;
|
(B) |
The aggregate Original US Dollar Amount of all outstanding Facility B Advances shall not at any time exceed the Facility B Total Commitments at that time;
|
(C) |
The aggregate Original US Dollar Amount of all outstanding Facility C Advances shall not at any time exceed the Facility C Total Commitments at that time; and
|
(D) |
The aggregate Original US Dollar Amount of all outstanding Facility D Advances shall not at any time exceed the Facility D Total Commitments at that time.
|
2.2.2 |
The aggregate Original US Dollar Amount of Advances made by a Bank under each Facility shall not at any time exceed its Commitment under that Facility at that time.
|
2.3 |
Number of Requests and Advances
|
2.3.1 |
No more than one Request may be delivered on any one day by any Borrower, but that Request may specify any number of Advances under any of the Facilities.
|
2.3.2 |
Unless the Agent agrees otherwise:
|
(A) |
no more than six Advances may be outstanding under a Facility at any time; and
|
(B) |
outstanding Advances at any time may not be denominated in more than three different currencies under each Facility.
|
2.4 |
Extension Option
|
2.4.1 |
Facility A Extension Option
|
(A) |
The Parent may request by providing a revocable Extension Notice to the Agent not less than fifteen Business Days prior to:
|
(1) |
the first anniversary of the Start Date, that Facility A be extended for a period of six months from the Facility A Final Maturity Date so that the Facility A Final Maturity Date be extended to the date falling 18 months after the Start Date (the "First Facility A Extended Maturity Date"); and
|
(2) |
the First Facility A Extended Maturity Date, that Facility A be extended for a period of six months from the First Facility A Extended Maturity Date so that the Facility A Final Maturity Date be extended to the date falling 24 months after the Start Date.
|
(B) |
The Agent shall promptly notify the Banks if it receives an Extension Notice from the Parent in accordance with Clause 2.4.1 above.
|
(C) |
The Borrowers shall pay to the US Agent (for the account of the Banks) an extension fee as detailed in Clause 20.4 (Extension Fee) within five Business Days of the applicable Extension Date.
|
(D) |
If the Parent elects to extend Facility A in accordance with this Clause 2.4.1 (Facility A Extension Option), Facility A will continue for the period of the extension and the Facility A Final Maturity Date will be construed accordingly in respect of all the Banks.
|
2.4.2 |
Facility B Extension Option
|
(A) |
The Parent may request by providing a revocable Extension Notice to the Agent not less than fifteen Business Days prior to:
|
(1) |
the second anniversary of the Start Date, that Facility B be extended for a period of six months from the Facility B Final Maturity Date so that the Facility B Final Maturity Date be extended to the date falling 30 months after the Start Date (the "First Facility B Extended Maturity Date"); and
|
(2) |
the First Facility B Extended Maturity Date, that Facility B be extended for a period of six months from the First Facility B Extended Maturity Date so that the Facility B Final Maturity Date be extended to the date falling 36 months after the Start Date.
|
(B) |
The Agent shall promptly notify the Banks if it receives an Extension Notice from the Parent in accordance with Clause 2.4.2 above.
|
(C) |
The Borrowers shall pay to the US Agent (for the account of the Banks) an extension fee as detailed in Clause 20.4 (Extension Fee) within five Business Days of the applicable Extension Date.
|
(D) |
If the Parent elects to extend Facility B in accordance with this Clause 2.4.2 (Facility B Extension Option), Facility B will continue for the period of the extension and the Facility B Final Maturity Date will be construed accordingly in respect of all the Banks.
|
2.5 |
Nature of a Finance Party's rights and obligations
|
2.5.1 |
The obligations of a Finance Party under the Finance Documents are several. Failure of a Finance Party to carry out those obligations does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
2.5.2 |
The rights of a Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with Clause 2.5.3 below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of an Advance or any other amount owed by an Obligor which relates to a Finance Party's participation in the Facilities or its role under a Finance Document (including any such amount payable to the US Agent on its behalf) is a debt owing to that Finance Party by that Obligor.
|
2.5.3 |
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
|
2.6 |
Parent as agent for Obligors
|
2.7 |
Actions of Parent as agent for Obligors
|
2.7.1 |
any irregularity (or purported irregularity) in any act done by or any failure (or purported failure) by the Parent;
|
2.7.2 |
the Parent acting (or purporting to act) in any respect outside any authority conferred upon it by any Obligor; or
|
2.7.3 |
the failure (or purported failure) by or inability (or purported inability) of the Parent to inform any Obligor of receipt by it of any notification under this Agreement.
|
3. |
PURPOSE
|
3.1 |
Each Advance under each Facility shall be applied in or towards (i) financing, directly or indirectly, the Acquisition and payment of related taxes, fees, costs and expenses; and (ii) re-financing the existing borrowings of the Target Group under the US$2,000,000,000 revolving credit facility dated 8 December 2014 entered into between, inter alia, Reynolds American Inc., certain of its subsidiaries and the lenders named therein.
|
3.2 |
Without affecting the obligations of any Borrower in any way, no Finance Party is bound to monitor or verify the application of the proceeds of any Advance.
|
4. |
CONDITIONS PRECEDENT
|
4.1 |
Documentary conditions precedent
|
4.1.1 |
The obligations of each Finance Party to any Borrower under this Agreement are subject to the conditions precedent that:
|
(A) |
the Borrowers have paid to such Finance Party such up-front fee as may be payable in connection with the entry into this Agreement in the amount and on the date agreed in the relevant Fee Letter; and
|
(B) |
the Agent has notified the Parent and the Banks that it has received all of the documents set out in Part I of Schedule 2 (Conditions Precedent Documents) in form and substance satisfactory to the Agent, other than paragraph 9 of Part I of Schedule 2 (Conditions Precedent Documents) in respect of which delivery of the relevant document shall satisfy the condition precedent. The Agent will promptly notify the Parent and the Banks upon such receipt.
|
4.2 |
Further conditions precedent
|
4.2.1 |
The obligations of each Bank to participate in an Advance (other than to an Advance to which Clause 4.3 (Certain Funds Utilisations) applies) are subject to the further conditions precedent that on the date of the Request for the Advance and on its Utilisation Date:
|
(A) |
the representations and warranties in Clause 15 (Representations and Warranties) deemed to be repeated on those dates pursuant to Clause 15.15.3 (Times for making representations and warranties) are correct and will be correct immediately after the disbursement of the Advance;
|
(B) |
no Default is outstanding or would result from the disbursement of the Advance; and
|
(C) |
the Advance would not cause Clause 2.2 (Overall limits under the Facilities) (as applicable to such Advance) to be contravened.
|
4.3 |
Certain Funds Utilisations
|
4.3.1 |
In this Clause 4.3:
|
4.3.2 |
Subject to Clause 4.1 (Documentary conditions precedent), during the Availability Period, a Bank will only be obliged to participate in an Advance in relation to a Certain Funds Utilisation if, on the date of the Request and on the proposed Utilisation Date:
|
(A) |
no Major Default is continuing or would result from the proposed Certain Funds Utilisation; and
|
(B) |
all the Major Representations are true.
|
4.3.3 |
During the Availability Period (save in circumstances where, pursuant to Clause 4.3.2, a Bank is not obliged to participate in an Advance and subject to Clause 7.4 (Mandatory Prepayment by Borrowers), Clause 13.1 (Illegality) and the Borrowers' compliance with Clause 7.5 (Mandatory Prepayment – Refinancing Proceeds)), none of the Finance Parties shall be entitled to:
|
(A) |
cancel any of its Commitments, to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
|
(B) |
rescind, terminate or cancel this Agreement or any of the Facilities or exercise any similar right or remedy or make or enforce any claim under the Finance Documents it may have to the extent to do so would prevent or limit the making of a Certain Funds Utilisation;
|
(C) |
refuse to participate in the making of a Certain Funds Utilisation;
|
(D) |
exercise any right of set-off or counterclaim in respect of an Advance to the extent to do so would prevent or limit the making of a Certain Funds Utilisation; or
|
(E) |
cancel, accelerate or cause repayment or prepayment of any amounts owing under this Agreement or under any other Finance Document to the extent to do so would prevent or limit the making of a Certain Funds Utilisation,
|
5. |
ADVANCES
|
5.1 |
Receipt of Requests
|
5.1.1 |
A Borrower may borrow Advances if the Agent receives, not later than 3 p.m. on the third Business Day before the proposed Utilisation Date, or, in the case of an Advance in Sterling, not later than 9.30 a.m. on the proposed Utilisation Date, a duly completed Request.
|
5.1.2 |
Each Request is irrevocable.
|
5.2 |
Completion of Requests for Advances
|
5.2.1 |
it identifies the relevant Borrower;
|
5.2.2 |
it identifies the relevant Facility to be utilised;
|
5.2.3 |
the Utilisation Date is a Business Day within the Availability Period applicable to that Facility;
|
5.2.4 |
only one currency is specified for each separate Advance and the Requested Amount for each separate Advance is in a minimum Original US Dollar Amount of US$25,000,000 (rounded to the nearest convenient 100,000 units in the case of currencies other than US Dollars); and
|
5.2.5 |
only one Term for each separate Advance is specified, which:
|
(A) |
does not overrun the Final Maturity Date applicable to the Facility under which the Advance has been requested; and
|
(B) |
is a period of one week, two weeks, one month, two, three or six months (or such other period as the Agent, acting on the instructions of all the Banks, may previously have agreed for the purposes of such Advance).
|
5.3 |
Amount of each Bank's Advance
|
5.4 |
Notification of the Banks
|
5.5 |
Payment of proceeds
|
6. |
REPAYMENT
|
6.1 |
Repayment of Advances
|
6.1.1 |
Each Borrower shall repay each Facility A Advance made to it in full to the US Agent for the Banks on the Facility A Final Maturity Date. No Facility A Advance may be outstanding after the Facility A Final Maturity Date.
|
6.1.2 |
Each Borrower shall repay each Facility B Advance made to it in full to the US Agent for the Banks on the Facility B Final Maturity Date. No Facility B Advance may be outstanding after the Facility B Final Maturity Date.
|
6.1.3 |
Each Borrower shall repay each Facility C Advance made to it in full to the US Agent for the Banks on the Facility C Final Maturity Date. No Facility C Advance may be outstanding after the Facility C Final Maturity Date.
|
6.1.4 |
Each Borrower shall repay each Facility D Advance made to it in full to the US Agent for the Banks on the Facility D Final Maturity Date. No Facility D Advance may be outstanding after the Facility D Final Maturity Date.
|
7. |
PREPAYMENT AND CANCELLATION
|
7.1 |
Voluntary cancellation
|
7.2 |
Automatic cancellation of Commitment
|
7.3 |
Voluntary prepayment
|
7.3.1 |
Any Borrower may, by giving not less than three Business Days' prior written notice to the Agent and the US Agent, prepay subject to breakage costs, if any, the whole or any part of an Advance made to it under a Facility (but if in part in an
|
aggregate minimum Original US Dollar Amount, taking all prepayments made by all the Borrowers on the same day together, of US$25,000,000).
|
7.3.2 |
Any voluntary prepayment under Clause 7.3.1 above will:
|
(A) |
be applied against Advances under the relevant Facility in such proportions as may be specified by the Parent in the notice of prepayment or, if not specified, against all Advances under the relevant Facility pro rata;
|
(B) |
be applied against the participations of the Banks in the relevant Advance pro rata; and
|
(C) |
be accompanied by all amounts payable under Clause 23.2.1(C) (Other indemnities) in respect of that prepayment if not made on a Term End Date of the relevant Advance.
|
7.4 |
Mandatory Prepayment by Borrowers
|
7.4.1 |
If any Borrower ceases to be a Subsidiary of the Parent, it shall forthwith prepay all Advances made to it together with all amounts payable by it under this Agreement, and thereupon cease to be a Borrower.
|
7.4.2 |
If any person or group of persons acting in concert gains control of the Parent:
|
(A) |
the Parent shall promptly notify the Agent and the US Agent upon becoming aware of such event; and
|
(B) |
if the Majority Banks so require, the Agent shall, by not less than 10 Business Days' written notice to the Parent and the US Agent, cancel the Total Commitments and declare all outstanding Advances, together with accrued interest, and all other amounts accrued under the Finance Documents, to be immediately due and payable, whereupon the Total Commitments will be cancelled in full and all such outstanding amounts will become immediately due and payable.
|
7.4.3 |
For the purpose of this Clause 7.4.2:
|
7.5 |
Mandatory Prepayment- Refinancing Proceeds
|
7.5.1 |
In this Clause 7.5:
|
7.5.2 |
Subject to Clause 7.5.3 below, the Original Borrowers and the Guarantor shall procure that an amount equal to the Net Proceeds of any Debt Financing is applied to reduce Facility A and Facility B in accordance with Clause 7.5.4 below.
|
7.5.3 |
Clause 7.5.2 does not apply to:
|
(A) |
the proceeds of any Debt Financing applied in refinancing or cancellation of any Existing Borrowed Moneys Indebtedness or Excluded Borrowed Moneys Indebtedness, which in each case mature no later than 24 months after the Signing Date;
|
(B) |
any Excluded Borrowed Moneys Indebtedness; and
|
(C) |
the Net Proceeds of any other Debt Financing provided that the total aggregate amount of Net Proceeds raised does not exceed US$1,000,000,000 plus an amount equal to any part of the Commitments voluntarily cancelled prior to the first Utilisation Date.
|
7.5.4 |
Where any Net Proceeds are to be applied to reduce Facility A and Facility B in accordance with Clause 7.5.2 above, the Net Proceeds will be allocated to be applied in the following order:
|
(A) |
first, in or towards pro rata prepayment of outstanding Advances under Facility A;
|
(B) |
second, in pro rata cancellation of the Available Commitments of the Banks under Facility A;
|
(C) |
third, in or towards pro rata prepayment of outstanding Advances under Facility B; and
|
(D) |
fourth, in pro rata cancellation of the Available Commitments of the Banks under Facility B.
|
7.6 |
Changes to Borrowers
|
7.6.1 |
Any Borrower in respect of which no Advance is outstanding hereunder (including any other amounts outstanding in relation thereto) may, at the request of the Parent, cease to be a Borrower by entering into a supplemental agreement to this Agreement in such form as the Agent may reasonably require which shall discharge that Borrower's obligations hereunder.
|
7.6.2 |
Any Borrower (the "Existing Borrower") may be released from its obligations under this Agreement as a Borrower, provided that another Borrower (the "Substitute Borrower") assumes the obligations in respect thereof of the Existing Borrower and provided further that:
|
(A) |
any such substitution shall take effect on and from the later of the day upon which the Agent notifies the Parent in writing that it is satisfied with the compliance with the matters set out in paragraphs (C) and (D) below
|
and the date for substitution specified in the relevant notice under paragraph (B) below;
|
(B) |
notice of the proposed substitution has been delivered by the Parent to the Agent not less than 14 days prior to the proposed substitution;
|
(C) |
no Event of Default has occurred and is continuing; and
|
(D) |
the Substitute Borrower enters into a novation agreement with the Existing Borrower, the Parent and the Agent on behalf of the Banks in the form of Part III of Schedule 4 (Forms of Accession Documents) together with such amendments as the Agent may reasonably require.
|
7.7 |
Right of cancellation in relation to a Defaulting Bank
|
7.7.1 |
If any Bank becomes a Defaulting Bank, a Borrower may, at any time whilst the Bank continues to be a Defaulting Bank, give the Agent three Business Days' notice of cancellation of each Available Commitment of that Bank.
|
7.7.2 |
On the notice referred to in Clause 7.7.1 above becoming effective, each Available Commitment of the Defaulting Bank shall immediately be reduced to zero.
|
7.7.3 |
The Agent shall as soon as practicable after receipt of a notice referred to in Clause 7.7.1 above, notify all the Banks.
|
7.8 |
Right of prepayment and cancellation
|
7.8.1 |
each Borrower shall prepay all outstanding Advances made to it by that Bank; and
|
7.8.2 |
the Bank's Commitment shall be permanently cancelled on the date of service of the notice.
|
7.9 |
Miscellaneous provisions
|
7.9.1 |
Any notice of prepayment and/or cancellation under this Agreement is irrevocable once given. The Agent shall notify the Banks promptly of receipt of any such notice.
|
7.9.2 |
All prepayments under this Agreement shall be made together with accrued interest on the amount prepaid and any other amounts due under this Agreement in respect of the prepayment (including, but not limited to, any amounts payable under Clause 23.2.1(C) (Other indemnities) if the prepayment is not made on a Term End Date of the relevant Advance).
|
7.9.3 |
No prepayment or cancellation is permitted except in accordance with the express terms of this Agreement.
|
7.9.4 |
No amount prepaid under this Clause 7 (Prepayment and Cancellation) may be reborrowed. No amount of the Total Commitments cancelled under this Agreement may subsequently be reinstated.
|
8. |
INTEREST
|
8.1 |
Interest rate for Advances
|
8.1.1 |
the applicable Margin; and
|
8.1.2 |
LIBOR (or, in the case of an Advance denominated in euro, EURIBOR).
|
8.2 |
Calculation of the Margin
|
8.2.1 |
Subject to Clauses 8.2.2 and 8.2.3 the applicable Margin shall be the percentage rate per annum specified opposite the relevant margin period below:
|
Relevant margin period
|
Margin per
annum
|
From and including the Signing Date to and excluding the date falling six months after the Signing Date
|
0.40 per cent.
|
From and including the date falling six months after the Signing Date to and excluding the date falling nine months after the Signing Date
|
0.55 per cent.
|
From and including the date falling nine months after the Signing Date to and excluding the date falling twelve months after the Signing Date
|
0.70 per cent.
|
From and including the date falling twelve months after the Signing Date to and excluding the date falling fifteen months after the Signing Date
|
0.85 per cent.
|
From and including the date falling fifteen months after the Signing Date to and excluding the date falling eighteen months after the Signing Date
|
1.00 per cent.
|
From and including the date falling eighteen months after the Signing Date to and excluding the date falling twenty-one months after the Signing Date
|
1.15 per cent.
|
From and including the date falling twenty-one months after the Signing Date to and excluding the date falling twenty-four months after the Signing Date
|
1.30 per cent.
|
From and including the date falling twenty-four months after the Signing Date to and excluding the date falling twenty-seven months after the Signing Date
|
1.45 per cent.
|
From and including the date falling twenty-seven months after the Signing Date to and excluding the date falling thirty months after the Signing Date
|
1.60 per cent.
|
Relevant margin period
|
Margin per
annum
|
From and including the Signing Date to and excluding the date falling
|
0.45 per cent.
|
Relevant margin period
|
Margin per annum
|
six months after the Signing Date
|
|
From and including the date falling six months after the Signing Date to and excluding the date falling nine months after the Signing Date
|
0.60 per cent.
|
From and including the date falling nine months after the Signing Date to and excluding the date falling twelve months after the Signing Date
|
0.75 per cent.
|
From and including the date falling twelve months after the Signing Date to and excluding the date falling fifteen months after the Signing Date
|
0.90 per cent.
|
From and including the date falling fifteen months after the Signing Date to and excluding the date falling eighteen months after the Signing Date
|
1.05 per cent.
|
From and including the date falling eighteen months after the Signing Date to and excluding the date falling twenty-one months after the Signing Date
|
1.20 per cent.
|
From and including the date falling twenty-one months after the Signing Date to and excluding the date falling twenty-four months after the Signing Date
|
1.35 per cent.
|
From and including the date falling twenty-four months after the Signing Date to and excluding the date falling twenty-seven months after the Signing Date
|
1.50 per cent.
|
From and including the date falling twenty-seven months after the Signing Date to and excluding the date falling thirty months after the Signing Date
|
1.65 per cent.
|
From and including the date falling thirty months after the Signing Date to and excluding the date falling thirty-three months after the Signing Date
|
1.80 per cent.
|
From and including the date falling thirty-three months after the Signing Date to and excluding the date falling thirty-six months after the Signing Date
|
1.95 per cent.
|
From and including the date falling thirty-six months after the Signing Date to and excluding the date falling thirty-nine months after the Signing Date
|
2.10 per cent.
|
From and including the date falling thirty-nine months after the Signing Date to and excluding the date falling forty-two months after the Signing Date
|
2.25 per cent.
|
(C) |
Facility C: 0.75 per cent. per annum.
|
(D) |
Facility D: 0.85 per cent. per annum.
|
(A) |
The Margin for the Term of an Advance shall be further adjusted on the applicable Rate Fixing Day for that Term by reference to the table below:
|
Rating
(S&P/Moody's)
|
Facility A
Adjustment to Margin
|
Facility B
Adjustment to Margin
|
Facility C
Margin
|
Facility D
Margin
|
A-/A3 or above
|
Reduction by 0.075 per cent. per annum
|
Reduction by 0.075 per cent. per annum
|
0.55 per cent. per annum
|
0.65 per cent. per annum
|
BBB+/Baa1 or above
|
Reduction by 0.075 per cent. per annum
|
Reduction by 0.075 per cent. per annum
|
0.65 per cent. per annum
|
0.75 per cent. per annum
|
BBB/Baa2 or above
|
Nil
|
Nil
|
0.75 per cent. per annum
|
0.85 per cent. per annum
|
BBB-/Baa3 or below
|
Increase by 0.125 per cent. per annum
|
Increase by 0.125 per cent. per annum
|
0.95 per cent. per annum
|
1.05 per cent. per annum
|
(B) |
With respect to Facility A and Facility B, the adjustments to the Margin in the table above assume a deemed Corporate Credit Rating of BBB and a deemed Issuer Rating of Baa2 as at the Closing Date.
|
(C) |
For the purpose of this Clause 8.2.2, "Rating" means the corporate rating of the Parent assigned by S&P (currently known as the "Corporate Credit Rating") and/ or Moody's (currently known as the "Issuer Rating") as at the Rate Fixing Day on which the Margin is being determined.
|
(D) |
For the avoidance of doubt, if there is a change to the Rating during the Term of an Advance, there shall be no change in the Margin for that Term until the next Rate Fixing Day for that Advance.
|
(E) |
If Ratings are confirmed or assigned to the Parent by S&P and Moody's that are not equivalent at any time, then the Margin will be the average of the Margins applicable to such credit ratings.
|
(F) |
If only one Rating Agency publishes a Rating for the Parent, the rating assigned by that Rating Agency shall be deemed also to be the rating assigned by the other Rating Agency.
|
(G) |
If on the relevant Rate Fixing Day both Rating Agencies have ceased to publish a Rating for the Parent, the Margin for the relevant Advance shall be determined on the basis of a deemed Corporate Credit Rating of BBB- and a deemed Issuer Rating of Baa3 until the date on which a Rating Agency publishes a Rating for the Parent.
|
(H) |
The Parent shall notify the Agent promptly of any publicly announced change in its Rating.
|
(I) |
In calculating the Margin for any Advance under this Clause 8.2.2, no account shall be taken of any rating outlook or credit watch action assigned to any Rating by the relevant Rating Agency.
|
8.2.3 |
For so long as there is an Event of Default that is continuing, the applicable Margin shall be determined on the basis of a deemed Corporate Credit Rating of BBB- and a deemed Issuer Rating of Baa3 as set out in the table in Clause 8.2.2(A) above.
|
8.3 |
Due dates
|
8.3.1 |
Except as otherwise provided in this Agreement, accrued interest on each Advance is payable by the relevant Borrower on each Term End Date for that Advance, and also, in the case of any Advance with a Term longer than six months, at six monthly intervals after its Utilisation Date for so long as the Term is outstanding.
|
8.3.2 |
A Borrower may select a Term for an Advance in the Request for that Advance or (if the Advance has already been borrowed) in a Selection Notice (and the conditions in Clause 5.2.5 shall also apply to each Selection Notice).
|
8.3.3 |
Each Selection Notice for an Advance is irrevocable and must be delivered to the Agent by the Borrower to which that Advance was made not later than 11.00 a.m. on the applicable Rate Fixing Day.
|
8.3.4 |
If a Borrower fails to deliver a Selection Notice to the Agent in accordance with Clause 8.3.3 above, the relevant Term will be one month.
|
8.3.5 |
A Term for an Advance shall not extend beyond the Final Maturity Date applicable to the Facility under which the Advance has been made. Each Term for an Advance shall start on the Utilisation Date or (if already made) on the last day of its preceding Term.
|
8.3.6 |
If two or more Terms:
|
(A) |
relate to Advances in the same currency made to the same Borrower under the same Facility; and
|
(B) |
any Term End Dates for such Advances are the same date,
|
8.4 |
Default interest
|
8.4.1 |
If an Obligor fails to pay any amount payable by it under this Agreement (an "overdue amount"), it shall forthwith on demand by the Agent pay interest on the overdue amount from the due date up to the date of actual payment, both before and after judgment, at a rate (the "default rate") determined by the Agent to be one per cent. per annum above the higher of:
|
(A) |
the rate on the overdue amount under Clause 8.1 (Interest rate for Advances) immediately before the due date (in the case of principal); and
|
(B) |
the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted an Advance at the highest Margin applicable at the time in the currency of the overdue amount for such successive Terms of such duration as the Agent may determine (each a "Designated Term").
|
8.4.2 |
The default rate will be determined on each Business Day or the first day of, or two Business Days before the first day of, the relevant Designated Term, as appropriate.
|
8.4.3 |
If the Agent determines that deposits in the currency of the overdue amount are not at the relevant time being made available by the Reference Banks to leading banks in the London interbank market, the default rate will be determined by reference to the cost of funds to the Agent from whatever sources it reasonably selects after consultation with the Reference Banks.
|
8.4.4 |
Default interest will be compounded at three-month intervals.
|
8.4.5 |
The Agent shall notify the Parent of the duration of each Designated Term.
|
8.5 |
Notification of rates of interest
|
8.6 |
Notification
|
9. |
PAYMENTS
|
9.1 |
Place of Payment
|
9.2 |
Funds
|
9.3 |
Distribution
|
9.3.1 |
Each payment received by an Administrative Party under this Agreement for another Party shall, subject to Clauses 9.3.2 and 9.3.3 below, be made available by such Administrative Party to that Party by payment (on the date and in the currency and funds of receipt) to its account with such bank in the principal financial centre of the country of the relevant currency (or, in the case of a payment in euro, to its account in the financial centre of a country selected by it) as it may notify to the relevant Administrative Party for this purpose by not less than five Business Days' prior notice.
|
9.3.2 |
An Administrative Party may apply any amount received by it for an Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from an Obligor under this Agreement or in or towards the purchase of any amount of any currency to be so applied.
|
9.3.3 |
Where a sum is to be paid under this Agreement to an Administrative Party for the account of another Party, such Administrative Party is not obliged to pay that sum to that Party until it has established that it has actually received that sum. Such Administrative Party may, but is not obliged to, assume that the sum has been paid to it in accordance with this Agreement and, in reliance on that assumption, make available to that Party a corresponding amount. If the sum has not been made available but such Administrative Party has paid a corresponding amount to another Party, that Party shall forthwith on demand refund the corresponding amount to such Administrative Party together with interest on that amount from the date of payment to the date of receipt, calculated at a rate reasonably determined by such Administrative Party to reflect its cost of funds.
|
9.4 |
Currency
|
9.4.1 |
A repayment or prepayment of an Advance is payable in the currency in which the Advance is denominated.
|
9.4.2 |
Interest is payable in the currency in which the relevant amount in respect of which it is payable is denominated.
|
9.4.3 |
Amounts payable in respect of costs, expenses, taxes and the like are payable in the currency in which they are incurred.
|
9.4.4 |
Any other amount payable under this Agreement is, except as otherwise provided in this Agreement, payable in US Dollars.
|
9.5 |
Set-off and counterclaim
|
9.6 |
Non-Business Days
|
9.6.1 |
If a payment under this Agreement is due on a day which is not a Business Day, the due date for that payment shall instead be the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
9.6.2 |
During any extension of the due date for payment of any principal under this Agreement interest is payable on the principal at the rate payable on the original due date.
|
9.7 |
Impaired Agent
|
9.7.1 |
If, at any time, an Administrative Party becomes an Impaired Agent and a Borrower or a Bank is required to make a payment under the Finance Documents to that Administrative Party in accordance with Clause 9.1 (Place of Payment), that Borrower or Bank may, subject to Clause 9.7.2 below, instead either pay that amount:
|
(A) |
direct to the required recipient; or
|
(B) |
to an interest-bearing account held with an Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the relevant Borrower or the Bank making the payment and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents. In each case, such payments must be made on the due date for payment under the Finance Documents.
|
9.7.2 |
If a Bank has become and continues to be a Defaulting Bank and a payment is required to be made by a Borrower or a Bank in accordance with Clause 9.7.1, that Obligor or Bank will make such payment in accordance with Clause 9.7.1(B).
|
9.7.3 |
A Party which is required to make a payment in accordance with Clause 9.7.1 shall notify the required recipient of the account into which the payment is made.
|
9.7.4 |
All interest accrued on the amounts standing to the credit of a trust account shall be for the benefit of the beneficiaries of that trust account pro rata to their respective entitlements.
|
9.7.5 |
A Party which has made a payment in accordance with this Clause 9.7 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.
|
9.7.6 |
Promptly upon the appointment of a successor Administrative Party to an Impaired Agent in accordance with Clause 19.16 (Resignation of an Administrative Party)), each Party which has made a payment to a trust account in accordance with this Clause 9.7 shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Administrative Party for distribution in accordance with Clause 9.3 (Distribution).
|
9.8 |
Partial payments
|
9.8.1 |
If an Administrative Party receives a payment insufficient to discharge all the amounts then due and payable by an Obligor under this Agreement, such
|
Administrative Party shall apply that payment towards the obligations of the Obligors under this Agreement in the following order:
|
(A) |
first, in or towards payment pro rata of any unpaid costs, fees and expenses of the Administrative Parties under this Agreement;
|
(B) |
secondly, in or towards payment pro rata of any accrued fees due but unpaid under Clause 20 (Fees);
|
(C) |
thirdly, in or towards payment pro rata of any interest due but unpaid under this Agreement;
|
(D) |
fourthly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
|
(E) |
fifthly, in or towards payment pro rata of any other sum due but unpaid under this Agreement.
|
9.8.2 |
The Administrative Parties, shall, if so directed by all the Banks, vary the order set out in Clause 9.8.1 above (other than Clause 9.8.1(A)). The Administrative Parties shall notify the Parent of any such variation.
|
9.8.3 |
Clauses 9.8.1 and 9.8.2 above shall override any appropriation made by any Obligor.
|
9.9 |
Clawback
|
9.9.1 |
Where a sum is to be paid to an Administrative Party under the Finance Documents for another Party, that Administrative Party is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
9.9.2 |
If an Administrative Party pays an amount to another Party and it proves to be the case that Administrative Party had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Administrative Party shall on demand refund the same to the Administrative Party together with interest on that amount from the date of payment to the date of receipt by an Administrative Party, calculated by the Administrative Party to reflect its costs of funds.
|
9.10 |
Disruption to Payment Systems etc.
|
9.10.1 |
the Agent shall consult with the Parent and shall use reasonable endeavours to agree with the Parent such changes to the operation or administration of the Facilities as the Agent may reasonably deem necessary in the circumstances;
|
9.10.2 |
the Agent may consult with the Finance Parties in relation to any changes mentioned in Clause 9.10.1 but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
9.10.3 |
any such changes agreed upon by the Agent and the Parent shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 25 (Amendments and Waivers);
|
9.10.4 |
the Agent shall not be liable for any damages, costs or losses whatsoever arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 9.10 provided that any decision to act, or not to act, was taken in good faith; and
|
9.10.5 |
the Agent shall notify the Finance Parties of all changes agreed pursuant to Clause 9.10.3 above.
|
9.11 |
Relationship between Agent and US Agent
|
10. |
TAXES
|
10.1 |
Gross-up
|
10.2 |
Tax receipts
|
10.3 |
Qualifying Banks
|
10.3.1 |
on the Signing Date, any Bank which is a Party on the Signing Date is not a Qualifying Bank; or
|
10.3.2 |
after the Signing Date, a Bank ceases to be a Qualifying Bank, other than as a result of the introduction, suspension, withdrawal or cancellation of, or change in, or change in the official interpretation, administration or official application of, any law, regulation having the force of law, tax treaty or any published practice or published concession of Her Majesty's Revenue & Customs or any other relevant taxing or fiscal authority in any jurisdiction with which the relevant Bank has a connection, occurring after the Signing Date or, if later, the date on which that Bank becomes a Party; or
|
10.3.3 |
on the date of any assignment, transfer or novation under Clause 26 (Changes to the Parties) a New Bank (as such term is defined in that Clause) is not a Qualifying Bank,
|
10.4 |
Tax Credit
|
10.4.1 |
If an Obligor makes a payment pursuant to Clause 10.1 (Gross-up) for the account of any Finance Party and such Finance Party has received or been granted a credit against, or relief or remission or repayment of, any tax paid or payable by it (a "Tax Credit") which is attributable to that payment or the corresponding payment under the Finance Document such Finance Party shall, to the extent that it can do so without prejudice to the retention of the amount of such credit, relief, remission or repayment, pay to the Obligor concerned such amount as the Finance Party shall have reasonably determined to be attributable to such payments and which will leave the Finance Party (after such payment) in no better or worse position than it would have been if the Obligor concerned had not been required to make any deduction or withholding.
|
10.4.2 |
Nothing in this Clause 10.4 shall interfere with the right of a Finance Party to arrange its tax affairs in whatever manner it thinks fit and without limiting the foregoing no Finance Party shall be under any obligation to claim a Tax Credit or to claim a Tax Credit in priority to any other claims, relief, credit or deduction available to it. No Finance Party shall be obliged to disclose any information relating to its tax affairs or any computations in respect thereof. Unless it would in a Bank's reasonable judgement be prejudicial to its interests, such Bank shall seek any Tax Credit available to it consequent upon any deductions or withholdings for tax being made from any payment to it under Clause 10.1 (Gross-up).
|
10.5 |
Borrower DTTP Filing
|
10.5.1 |
If a Bank holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to this Agreement, it shall, or the Agent shall (if notified by the Bank) on its behalf, notify the Parent in accordance with the provisions of Clause 32 (Notices) that the relevant Bank wishes the scheme to apply and provide that Bank's scheme reference number and jurisdiction of tax residence within five Business Days of becoming a Party to this Agreement.
|
10.5.2 |
Each Bank which wishes the HMRC DT Treaty Passport scheme to apply to this Agreement shall promptly provide such further information (directly to an Obligor or via the Agent) as an Obligor may request in order to enable the Obligor to make a Borrower DTTP Filing.
|
10.5.3 |
If a Borrower had received authority from HM Revenue & Customs to make payments to that Bank without deduction for or on account of tax as a result of a Borrower DTTP Filing, but as a result of (i) a withdrawal or expiry of that authority; or (ii) a withdrawal or cessation of the DTTP passport scheme due to any change in law or change in practice of HM Revenue & Customs, it is no longer possible for that Borrower to make payments to the Bank without deduction for or on account of tax by virtue of that authority, and the Borrower has notified that Bank in writing, that Bank and the Borrower shall co-operate in completing any additional procedural formalities necessary for that Borrower to obtain authorisation to make payment without deduction for or on account of tax.
|
10.6 |
FATCA
|
10.6.1 |
Each Party may make any FATCA Deduction and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
10.6.2 |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) in respect of an Advance made to an Obligor that is not a US Person, notify the Party to whom it is making payment and, in addition, shall notify the Parent, the Agent and the other Finance Parties.
|
10.6.3 |
Subject to Clause 10.6.4 below, each Party shall, within ten Business Days of a reasonable request by another Party, confirm to that other Party whether it is entitled to receive payments under the Finance Documents free from any deduction or withholding required by FATCA (hereafter referred to as "FATCA Exempt") or is not so entitled, and shall supply to that other Party such forms, documentation and other information relating to its status under FATCA (including information required under the US Treasury Regulations or other official guidance including intergovernmental agreements) as that other Party reasonably requests and is necessary for the purposes of that other Party’s compliance with FATCA or any other exchange of information regime (provided that the necessity of such request is reasonably evidenced to the satisfaction of the Party to whom the request is made (acting reasonably)). If a Party confirms to another Party pursuant to this Clause that it is FATCA Exempt and it subsequently becomes aware that it is not, or has ceased to be FATCA Exempt, that Party shall promptly notify that other Party.
|
10.6.4 |
Clause 10.6.3 above shall not oblige a Finance Party to do anything which would or might in its reasonable opinion constitute a breach of any law or regulation, any fiduciary duty or any duty of confidentiality.
|
10.6.5 |
If a Finance Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with Clause 10.6.3 above (including, for the avoidance of doubt, where Clause 10.6.4 above applies), then if that Finance Party failed to confirm whether it is (and/or remains) FATCA Exempt then such Finance Party shall be treated for the purposes of this Agreement as if it is not FATCA Exempt until such time as the Finance Party provides the requested confirmation, forms, documentation or other information.
|
10.7 |
US Borrower
|
10.7.1 |
Without prejudice to the generality of the foregoing, any Finance Party that is entitled to an exemption from or reduction of withholding tax with respect to payments made under any Finance Document shall deliver to the Agent or the relevant Obligor, at the time or times reasonably requested by the Agent or any Obligor, such properly completed and executed documentation reasonably requested by the Agent or such Obligor as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Finance Party, if reasonably requested by the Agent or any Obligor, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Agent or such Obligor as will enable the Agent or such Obligor to determine whether or not such Finance Party is subject to backup withholding or information reporting requirements. This Clause 10.7.1 shall not require any Finance Party to provide to the Agent or any Obligor any documentation if it would result in a breach of any applicable law or regulation, any fiduciary duty or any duty of confidentiality (other than any such documentation required to be provided under Clause 10.7.2 or Clause 10.7.3). Any taxes attributable to a Finance Party’s failure to comply with this Clause 10.7.1 shall be considered excluded from the gross-up provided in Clause 10.1.
|
10.7.2 |
Without limitation to the generality of the foregoing, each Finance Party that is a US Person shall:
|
(A) |
on or prior to the Signing Date (or, if it becomes a Finance Party after such date, on the date it becomes a Finance Party); or
|
(B) |
otherwise, from time to time thereafter as reasonably requested by the Agent or any Obligor (but only so long as such Finance Party is lawfully able to do so),
|
10.7.3 |
Without limitation to the generality of the foregoing, each Finance Party that is not a US Person shall: (i) on or prior to the Signing Date (or, if it becomes a Finance Party after such date, on the date it becomes a Finance Party); or (ii) otherwise, from time to time thereafter as reasonably requested by the Agent or any Obligor (but only so long as such Finance Party is lawfully able to do so):
|
(A) |
in the case of a Finance Party claiming the benefits of an exemption from or a reduction in US federal withholding tax pursuant to a double taxation agreement between the United States and the jurisdiction of which such Finance Party is or is treated as a resident, provide the Agent and the relevant Obligor with one copy of a properly completed and duly executed Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor or other form prescribed by the Internal Revenue Service), certifying that such Finance Party is exempt from or entitled to a reduced rate of US federal withholding tax under an applicable double taxation agreement or treaty on payments made by an Obligor that is a US Person to such Finance Party under any Finance Document;
|
(B) |
in the case of a Finance Party claiming the benefits of an exemption from US federal withholding tax because payments otherwise subject to such withholding tax made by an Obligor that is a US Person are effectively connected with such Finance Party’s conduct of a trade or business within the United States, provide the Agent and the relevant Obligor with one copy of a properly completed and duly executed Internal Revenue Service Form W-8ECI (or any successor or other form prescribed by the Internal Revenue Service) certifying that such payments are effectively connected with the conduct of a trade or business within the United States;
|
(C) |
in the case of a Finance Party claiming the benefits of the exemption from US federal withholding tax pursuant to Section 881(c) of the Code with respect to payments of “portfolio interest” made by an Obligor that is a US Person to such Finance Party under any Finance Document, provide the Agent and the relevant Obligor with:
|
(1) |
a certificate to the effect that such Finance Party is: (i) not a “bank” (within the meaning of Section 881(c)(3)(A) of the Code); (ii) not a 10-percent shareholder of any Obligor (within the meaning of Section 881(c)(3)(B) of the Code); and (iii) not a controlled foreign corporation related to any Obligor (as such term is described in Section 881(c)(3)(C) of the Code); and
|
(2) |
one copy of a properly completed and duly executed Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor or other form prescribed by the Internal Revenue Service), certifying that such Finance Party is not a US Person; or
|
(D) |
in the case of a Finance Party that is a foreign intermediary or foreign flow-through entity for US federal income tax purposes, provide the Agent and the relevant Obligor with one copy of a properly completed and duly executed Internal Revenue Service Form W-8IMY (or any successor or other form prescribed by the Internal Revenue Service) as a basis for claiming an exemption from or a reduction in US federal withholding tax
|
on payments made by the relevant Obligor that is a US Person to such Finance Party under any Finance Document, together with any supplementary information such Finance Party is required to transmit with such form and, in the case of a nonqualified intermediary that is a Finance Party or a non-withholding Finance Party that is a foreign flow-through entity, with respect to each beneficiary or member of such Finance Party, one copy of the forms or certificates described in paragraphs (A), (B) or (C) above of this Clause 10.7.3, as applicable.
|
10.7.4 |
If a Finance Party fails to provide the Agent or the relevant Obligor with the appropriate Internal Revenue Service form or, if applicable, the certificate, each as described above and each being properly completed and duly executed, or to update them as requested (other than if the failure to furnish such form or certificate is due to a change in law, or in the interpretation or application thereof, occurring after the date on which the form or certificate originally was required to be provided or if such form, certificate or other document otherwise is not required under Clause 10.7.1, 10.7.2 or 10.7.3), US backup withholding tax and US federal withholding tax, in each case, imposed on any amount paid by (or on account of) an Obligor that is a US Person under any Finance Document shall be considered excluded from the gross-up provided in Clause 10.1 by reason of such failure unless and until such Finance Party provides the appropriate Internal Revenue Service form or certificate that is properly completed and duly executed establishing (A) an exemption from US backup withholding tax and (B) a complete exemption from, or a reduction of, US federal withholding tax on such amount, whereupon US federal withholding tax at such reduced rate only (to the extent a complete exemption is not available to such Finance Party) shall be considered excluded from such gross-up for periods governed by such form and certificate. If any Internal Revenue Service form provided by a Finance Party pursuant to this Clause 10.7.4 at the time such Finance Party first becomes a Finance Party hereunder, or when it first provides such form, indicates a US federal withholding tax rate in excess of zero in respect of any amount paid by (or an account of) the relevant Obligor that is a US Person to such Finance Party under any Finance Document, US federal withholding tax imposed on such amount at such rate shall be considered excluded from the gross-up provided in Clause 10.1 unless and until such Finance Party provides the appropriate form certifying that a lesser rate applies, whereupon US federal withholding tax at the lesser rate only shall be considered excluded from the gross-up for periods governed by such form; provided, however, that if at the date a New Bank becomes a party to this Agreement or any other Finance Document, the applicable transferor Existing Bank was entitled to payments under Clause 10.1 in respect of US federal withholding tax in connection with any amount paid at such date, then, to that extent, the payments under Clause 10.1 shall include an amount of US federal withholding tax applicable with respect to such transferor Existing Bank on such date.
|
10.7.5 |
On or prior to the Signing Date (and from time to time thereafter as reasonably requested by any Obligor), the US Agent shall provide to any Obligor that is a US Person a properly completed and duly executed Internal Revenue Service Form W-9.
|
11. |
MARKET DISRUPTION
|
11.1 |
Market disturbance
|
11.1.1 |
only one or no Reference Bank supplies a rate for the purposes of determining LIBOR or EURIBOR (as the case may be); or
|
11.1.2 |
the Agent is notified by Banks whose Commitments represent 25 per cent. or more of the Total Commitments that deposits in the currency of that Advance are not in the ordinary course of business available in the London Interbank Market for a period equal to the Term concerned in amounts sufficient to fund their participations in that Advance; or
|
11.1.3 |
the Agent is notified by Banks whose Commitments represent 25 per cent. or more of the Total Commitments that by reason of circumstances affecting the London Interbank Market generally, adequate and fair means do not exist for ascertaining the LIBOR or EURIBOR (as the case may be) applicable to such Advance during its Term or LIBOR or EURIBOR (as the case may be) does not adequately represent the cost of funding to the Banks,
|
11.2 |
Alternative Rates
|
11.2.1 |
the Parent and the Banks may (through the Agent) agree that the Advances concerned shall not be borrowed; or
|
11.2.2 |
in the absence of such agreement:
|
(A) |
the Term of the Advances concerned shall be one month;
|
(B) |
in the case of Clause 11.1.2, the Advance shall be denominated in US Dollars in an amount equal to the Original US Dollar Amount of the Advance concerned; and
|
(C) |
during the Term of each Advance the rate of interest applicable to such Advance shall be the applicable Margin plus the rate per annum notified by each Bank concerned to the Agent before the relevant Term End Date to be that which expresses as a percentage rate per annum the cost to such Bank of funding such Advances from whatever sources it may reasonably select.
|
11.3 |
Non-availability of currency
|
11.4 |
Change in circumstances
|
11.4.1 |
the Agent shall give notice to each of the Banks and the Parent to that effect as soon as practicable but in any event before 11.00 a.m. (London time) on the proposed Utilisation Date;
|
11.4.2 |
unless the Parent and the Banks agree otherwise, the Advance shall be made in US Dollars and the Rate Fixing Day for the Term of the Advance shall be the Utilisation Date; and
|
11.4.3 |
the relevant Borrower shall pay to the US Agent on behalf of the Bank any amount claimed in accordance with Clause 23.2 (Other indemnities).
|
11.5 |
Change in currency
|
11.5.1 |
If more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(A) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent; and
|
(B) |
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent acting reasonably.
|
11.5.2 |
If any change in any currency of a country occurs, this Agreement will be amended to the extent the Agent specifies to be necessary to reflect the change in the currency and to put the Finance Parties in the same position, so far as possible, that they would have been in if no change in currency had occurred.
|
12. |
INCREASED COSTS
|
12.1 |
Increased costs
|
12.1.1 |
Subject to Clause 12.3 (Exceptions), the Borrowers shall forthwith on demand by a Finance Party pay that Finance Party the amount of any increased cost incurred by it or any of its holding companies as a result of any change in or change in the interpretation of or introduction of any law or regulation (including any relating to taxation or reserve asset, special deposit, cash ratio, liquidity or capital adequacy requirements or any other form of banking or monetary control introduced by any central bank or other competent authority), or reduce or repay that Finance Party's commitments or outstandings without penalty.
|
12.1.2 |
In this Agreement, "increased cost" means:
|
(A) |
an additional cost incurred by a Finance Party or any of its holding companies as a result of it performing, maintaining or funding its obligations under, this Agreement; or
|
(B) |
that portion of an additional cost incurred by a Finance Party or any of its holding companies in making, funding or maintaining all or any advances comprised in a class of advances formed by or including the Advances made or to be made by it under this Agreement as is attributable to it making, funding or maintaining its Advances; or
|
(C) |
a reduction in any amount payable to a Finance Party or the effective return to a Finance Party under this Agreement or on its capital (or the capital of any of its holding companies); or
|
(D) |
the amount of any payment made by a Finance Party, or the amount of interest or other return foregone by a Finance Party, calculated by reference to any amount received or receivable by a Finance Party from any other Party under this Agreement.
|
12.2 |
Increased costs claim
|
12.2.1 |
A Finance Party intending to make a claim pursuant to Clause 12.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Parent.
|
12.2.2 |
Each Finance Party shall, as soon as practicable after a demand by the Agent or the Parent, provide a certificate confirming the amount of its increased costs, detailing the calculation of the claim and confirming that it has considered whether there are any reasonable steps available to it to mitigate the circumstances of such claim in accordance with Clause 13.2 (Mitigation) and there are no such steps available to it.
|
12.3 |
Exceptions
|
12.3.1 |
attributable to any tax or amounts in respect of tax which must be deducted from any amounts payable or paid by a Borrower, or paid or payable by the Agent or the US Agent, to a Finance Party under the Finance Documents;
|
12.3.2 |
which is, or is attributable to, any tax on the overall net income, profits or gains of a Finance Party or any of its holding companies (or the overall net income, profits or gains of a division or branch of the Finance Party or any of its holding companies) or any branch profit tax with respect to such division or branch;
|
12.3.3 |
attributable to a Finance Party or its Affiliate wilfully failing to comply with any law or regulation; or
|
12.3.4 |
attributable to a FATCA Deduction required to be made by a Party.
|
13. |
ILLEGALITY AND MITIGATION
|
13.1 |
Illegality
|
13.1.1 |
each Borrower shall, upon request from that Bank within the period allowed or if no period is allowed, forthwith, repay any Advances made to it by that Bank together with all other amounts payable by it to that Bank under this Agreement; and
|
13.1.2 |
the Bank's Commitment shall be cancelled.
|
13.2 |
Mitigation
|
13.2.1 |
any deduction, withholding or payment of the nature referred to in Clause 10 (Taxes); or
|
13.2.2 |
any increased cost of the nature referred to in Clause 12 (Increased Costs); or
|
13.2.3 |
a notification pursuant to Clause 13.1 (Illegality),
|
14. |
GUARANTEE
|
14.1 |
Guarantee
|
14.1.1 |
guarantees to each Finance Party prompt performance by each Borrower of all its obligations under the Finance Documents;
|
14.1.2 |
undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, the Guarantor shall forthwith on demand by the Agent pay that amount as if the Guarantor instead of the relevant Borrower were expressed to be the principal obligor; and
|
14.1.3 |
indemnifies each Finance Party on demand against any loss or liability suffered by it if any obligation guaranteed by the Guarantor is or becomes unenforceable, invalid or illegal.
|
14.2 |
Continuing guarantee
|
14.3 |
Reinstatement
|
14.3.1 |
Where any discharge, release or arrangement (whether in respect of the obligations of any Borrower or any security for those obligations or otherwise) is made in whole or in part or any arrangement is made on the faith of any payment, security or other disposition which is avoided or must be restored on insolvency, liquidation or otherwise without limitation, the liability of the Guarantor under this Clause 14 shall continue as if the discharge or arrangement had not occurred (but only to the extent that such payment, security or other disposition is avoided or restored).
|
14.3.2 |
Each Finance Party may concede or compromise any claim that any payment, security or other disposition is liable to avoidance or restoration.
|
14.4 |
Waiver of defences
|
14.4.1 |
any time or waiver granted to, or composition with, any Borrower or other person;
|
14.4.2 |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Borrower or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
14.4.3 |
any incapacity or lack of powers, authority or legal personality of or dissolution or change in the members or status of a Borrower or any other person;
|
14.4.4 |
any variation (however fundamental) or replacement of a Finance Document or any other document or security so that references to that Finance Document in this Clause 14 shall include each variation or replacement;
|
14.4.5 |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security, to the intent that the Guarantor's obligations under this Clause 14 shall remain in full force and its guarantee be construed accordingly, as if there were no unenforceability, illegality or invalidity; and
|
14.4.6 |
any postponement, discharge, reduction, non-provability or other similar circumstance affecting any obligation of any Borrower under a Finance Document resulting from any insolvency, liquidation or dissolution proceedings or from any
|
law, regulation or order so that each such obligation shall for the purposes of the Guarantor's obligations under this Clause 14 be construed as if there were no such circumstance.
|
14.5 |
Immediate recourse
|
14.6 |
Appropriations
|
14.6.1 |
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and
|
14.6.2 |
hold in an interest bearing suspense account any moneys received from the Guarantor or on account of the Guarantor's liability under this Clause 14.
|
14.7 |
Non-competition
|
14.7.1 |
be subrogated to any rights, security or moneys held, received or receivable by any Finance Party (or any trustee or agent on its behalf) or be entitled to any right of contribution or indemnity in respect of any payment made or moneys received on account of the Guarantor's liability under this Clause 14;
|
14.7.2 |
claim, rank, prove or vote as a creditor of any Borrower or its estate in competition with any Finance Party (or any trustee or agent on its behalf); or
|
14.7.3 |
receive, claim or have the benefit of any payment, distribution or security from or on account of any Borrower, or exercise any right of set-off as against any Borrower.
|
14.8 |
Additional security
|
15. |
REPRESENTATIONS AND WARRANTIES
|
15.1 |
Representations and warranties
|
15.2 |
Status
|
15.3 |
Powers and authority
|
15.4 |
Non-conflict
|
15.5 |
Borrowing limits
|
15.6 |
Authorisations
|
15.7 |
Pari passu
|
15.8 |
Litigation
|
15.9 |
Material adverse change
|
15.10 |
Accounts
|
15.11 |
Sanctions and Anti-Bribery and Corruption
|
15.11.1 |
None of the Obligors nor, to the best of the knowledge of the Obligors, any director, officer, agent, employee or affiliate of the Obligors (i) are currently subject to any sanctions administered by OFAC or any equivalent sanctions administered by the European Union or HM Treasury; or (ii) has engaged in any activity which would breach the Anti-Bribery and Corruption Laws or Anti-Money Laundering Laws.
|
15.11.2 |
Each of the Obligors have in place and will enforce policies and procedures designed to ensure compliance with the Anti-Bribery and Corruption Laws and Anti-Money Laundering Laws.
|
15.12 |
No Event of Default
|
15.13 |
Investment company status
|
15.14 |
ERISA and Multiemployer Plans
|
15.15 |
Times for making representations and warranties
|
15.15.1 |
are made on the Signing Date;
|
15.15.2 |
(except for Clause 15.8 (Litigation), Clause 15.9 (Material adverse change), Clause 15.10 (Accounts), Clause 15.11 (Sanctions) and Clause 15.14 (ERISA and Multiemployer Plans)) in the case of an Obligor which becomes a Party after the Signing Date, are deemed to be made by that Obligor on the date it executes a Borrower Accession Agreement; and
|
15.15.3 |
(except for Clause 15.8 (Litigation), Clause 15.9 (Material adverse change), Clause 15.11 (Sanctions) and Clause 15.14 (ERISA and Multiemployer Plans)) are deemed to be repeated by each Obligor with reference to the facts and circumstances then existing on:
|
(A) |
the date of each Request;
|
(B) |
each Utilisation Date; and
|
(C) |
the first day of each Term,
|
15.15.4 |
(except for Clause 15.8 (Litigation), Clause 15.9 (Material adverse change), Clause 15.11 (Sanctions) and Clause 15.14 (ERISA and Multiemployer Plans)) are deemed to be repeated by each Obligor with reference to the facts and circumstances then existing on each date on which the Facility A Final Maturity Date and Facility B Final Maturity Date is extended in accordance with Clause 2.4 (Extension Option).
|
16. |
UNDERTAKINGS
|
16.1 |
Duration
|
16.2 |
Financial information
|
16.2.1 |
as soon as the same are publicly available (and in any event within 180 days of the end of each of its financial years):
|
(A) |
in the case of the Parent, its audited consolidated financial statements for that financial year; and
|
(B) |
in the case of each other Obligor, its audited statutory accounts for that financial year; and
|
16.2.2 |
as soon as the same are publicly available (and in any event within 90 days of the end of the first half-year of each of its financial years) in the case of the Parent, its interim unaudited consolidated financial statements for that half-year.
|
16.3 |
Information - Miscellaneous
|
16.3.1 |
all documents despatched by it to its shareholders (or any class of them) or its creditors generally (or any class of them) in relation to it or its Subsidiaries at the same time as they are despatched;
|
16.3.2 |
promptly upon becoming aware of them, details of any legal or arbitration proceedings of the kind referred to in Clause 15.8 (Litigation); and
|
16.3.3 |
as soon as reasonably practicable, such further information in the possession or control of the Parent regarding its financial condition, business or operations as the Agent may reasonably request unless such information is, in the sole opinion of the Parent, confidential or price sensitive (acting in good faith).
|
16.4 |
Notification of Default
|
16.5 |
Authorisations
|
16.5.1 |
comply with the terms of each Finance Document to which it is a party; and
|
16.5.2 |
obtain and maintain, and, if requested, supply certified copies to the Agent of, any authorisation required under any law or regulation to enable it to perform its obligations under, or for the validity or enforceability of, any Finance Document to which it is a party.
|
16.6 |
Pari passu ranking
|
16.7 |
Negative pledge
|
16.7.1 |
to secure any excise or import taxes or duties, tobacco taxes or sales or goods and services taxes owed to, or industrial grants made by, any state, government, political sub-division or international organisation, or any agency, authority, instrumentality or body of any thereof or any regulatory authority; or
|
16.7.2 |
created or arising with the prior written approval of the Majority Banks; or
|
16.7.3 |
created or arising out of retention of title provisions or a conditional sale in respect of goods acquired by an Obligor in the ordinary course of business; or
|
16.7.4 |
which is a lien or other Security Interest arising in the ordinary course of business consistent with past practice and not securing Borrowings; or
|
16.7.5 |
over assets or revenues acquired after the Signing Date and existing on the date of such acquisition and not created in contemplation thereof provided the aggregate principal amount secured thereby at the date of acquisition is not exceeded; or
|
16.7.6 |
the principal purpose and effect of which is to allow the setting-off or netting of obligations with those of a financial institution in the ordinary course of the cash management arrangements of the Group; or
|
16.7.7 |
constituted by netting, set-off or cash collateral arrangements in relation to swaps or other derivative agreements in the ordinary course of its business; or
|
16.7.8 |
arising under arrangements in connection with the participation in or trading on or through any clearing system or investment, commodities or stock exchange where the Security Interest arises in the ordinary course of business under the rules or normal procedures or legislation governing such system or exchange; or
|
16.7.9 |
on Margin Stock or otherwise over securities, derivatives or commodities, in respect of the acquisition cost of securities, derivatives or commodities owed to a dealer therein or an agent for the purchase thereof where such cost falls to be paid within 180 days of being incurred; or
|
16.7.10 |
arising out of or in connection with pre-judgment legal process or a judgment or a judicial award relating to security for costs; or
|
16.7.11 |
which is to renew, extend or replace a Security Interest permitted by this Clause 16.7 if the principal amount secured is not thereby exceeded and such permitted Security Interest is discharged or released within three months of the creation of the replacement Security Interest; or
|
16.7.12 |
created by it in favour of another Obligor, or
|
16.7.13 |
over cash or cash equivalents covering Defeased Borrowings; or
|
16.7.14 |
created by or arising out of any Obligor provided the aggregate principal, capital or nominal amount secured by all such Security Interests does not exceed £400,000,000 or its equivalent in other currencies at any one time.
|
16.8 |
Disposals
|
16.9
|
Change of business
|
16.10 |
Insurance
|
16.11 |
Environmental undertakings
|
16.11.1 |
Each Obligor will not, and the Parent will procure that no member of the Group will, other than when duly licensed by the appropriate regulatory authorities, use, generate, store, handle, transport, dump, release, deposit, bury, emit, abandon or place any Dangerous Substance at, on, from or under any property which it owns or occupies if to do so will have a material adverse effect on the ability of the Obligors (taken as a whole) to perform their obligations under the Finance Documents.
|
16.11.2 |
Each Obligor will, and the Parent will procure that each member of the Group will, comply in all respects (consistently with the manner in which similar businesses operating in the relevant jurisdiction comply) with:
|
(A) |
all applicable Environmental Laws; and
|
(B) |
the terms of all Environmental Approvals necessary for the ownership and operation of its facilities and businesses as owned and operated from time to time,
|
16.12 |
Sanctions and Anti-Bribery and Corruption
|
16.13 |
Margin Stock
|
17. |
FINANCIAL COVENANT
|
17.1 |
Definitions
|
17.1.1 |
In this Clause 17:
|
(A) |
the consolidated profit for the period of the Group, including results from discontinued operations and the Group’s share of the post-tax results of Associates and Joint Ventures;
|
(B) |
adding back net finance costs and taxation for the period (including net finance costs and taxation included within Associates and Joint Ventures);
|
(C) |
taking no account of any adjusting items (as such term is used in the most recent consolidated financial statements of the Parent), including (but not restricted to) gains or losses arising on:
|
(1) |
restructurings of the activities of an entity and reversals of any provisions for the costs of restructuring;
|
(2) |
disposals of non-current assets, including the disposal of net assets associated with discontinued operations;
|
(3) |
amortisation of trademarks and similar items;
|
(4) |
adjusting items of Associates and Joint Ventures;
|
(D) |
taking no account of any income or charge attributable to a defined benefit pensions scheme other than the current service costs on plan liabilities attributable to the scheme;
|
(E) |
adding back any depreciation and amortisation and taking no account of any charge for impairment or any reversal of any previous impairment charge made in the period, unless already adjusted for under (C) above; and
|
(F) |
including interest and dividend income of the Group,
|
17.1.2 |
All amounts defined by the terms used in Clause 17.1.1 above are to be calculated in accordance with EU-endorsed IFRS, where applicable and as applied to each set of audited annual consolidated financial statements of the Group delivered under Clause 16.2 (Financial information). For the purposes of Clause 17.1.1 above, amounts in currencies other than Sterling shall be translated into Sterling at the rates used in the latest audited annual consolidated financial statements of the Group.
|
17.1.3 |
If there is a dispute as to any interpretation of or computation for this Clause 17, the interpretation or computation of the auditors for the time being of the Parent will prevail.
|
17.2 |
Interest Cover Ratio
|
18. |
DEFAULT
|
18.1 |
Events of Default
|
18.2 |
Non-payment
|
18.3 |
Breach of other obligations
|
18.3.1 |
An Obligor does not comply with Clause 17 (Financial Covenant).
|
18.3.2 |
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 18.3.1 above or in Clause 18.2 (Non-payment)) and such failure (if capable of remedy before the expiry of such period) continues un-remedied for a period of 30 days from the earlier of the date on which (i) an Obligor becomes aware of the failure to comply or (ii) the Agent gives notice to the Parent requiring the same to be remedied.
|
18.4 |
Misrepresentation
|
18.5 |
Cross-default
|
18.5.1 |
in any particular case amounts to at least £50,000,000 or the equivalent thereof in any other currency; or
|
18.5.2 |
when aggregated with other Borrowed Moneys Indebtedness then so due and repayable or not so paid amounts to at least £200,000,000 or the equivalent thereof in any other currency.
|
18.6 |
Insolvency
|
18.6.1 |
An Obligor is, or is deemed for the purposes of any law to be unable to pay its debts as they fall due or to be insolvent (except by reason of the failure to pay individual liability not exceeding US$10,000,000 or its equivalent in any other currency), or admits inability to pay its debts as they fall due; or
|
18.6.2 |
an Obligor suspends making payments on all or any class of its debt or announces an intention to do so, or a moratorium (other than a general governmental moratorium affecting foreign currency or exchange controls) is declared in respect of any of its indebtedness; or
|
18.6.3 |
an Obligor, by reason of financial difficulties, begins negotiations with its creditors generally or any class of them with a view to the readjustment or rescheduling of any of its indebtedness.
|
18.7 |
Insolvency proceedings
|
18.7.1 |
Any formal voluntary step commencing legal proceedings (including petition or convening a meeting) is taken by an Obligor (other than a US Debtor) with a view to a composition, assignment or arrangement with any class of creditors of an Obligor (other than a US Debtor); or
|
18.7.2 |
a meeting of an Obligor (other than a US Debtor) is convened by its directors or secretary for the purpose of considering any resolution for (or to petition for) its winding-up or for its administration or any such resolution is passed; or
|
18.7.3 |
any person presents a petition for the winding-up or for the administration of an Obligor (other than a US Debtor) and the petition is not discharged or stayed within 21 days; or
|
18.7.4 |
an order for the winding up or administration of an Obligor (other than a US Debtor) is made.
|
18.8 |
Appointment of receivers and managers
|
18.8.1 |
Any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or the like is appointed in respect of an Obligor (other than a US Debtor) or all or substantially all of its assets and, only in the case of the appointment of a judicial custodian, compulsory manager or receiver, is not discharged within 21 days; or
|
18.8.2 |
the directors of an Obligor (other than a US Debtor) request the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or the like in respect of itself.
|
18.9 |
Creditors' process
|
18.10 |
Analogous proceedings
|
18.11 |
US Bankruptcy Law
|
18.11.1 |
it makes a general assignment for the benefit of creditors;
|
18.11.2 |
it commences a voluntary case or proceeding under any US Bankruptcy Law; or
|
18.11.3 |
an involuntary case under any US Bankruptcy Law is commenced against it and is not dismissed or stayed within 60 days after commencement of the case.
|
18.12 |
Unlawfulness
|
18.13 |
Guarantee
|
18.14 |
Employee Plans
|
18.15 |
Exceptions
|
18.16 |
Acceleration
|
18.16.1 |
If an Event of Default described in Clause 18.11(US Bankruptcy Law) occurs, the Total Commitments will, if not already cancelled under this Agreement, be immediately and automatically cancelled and all amounts outstanding under the Finance Documents will be immediately and automatically due and payable, without the requirement of notice or any other formality.
|
18.16.2 |
On and at any time after the occurrence of an Event of Default and while such event is continuing the Agent may, and shall if so directed by the Majority Banks, by notice to the Parent, declare that an Event of Default has occurred and:
|
(A) |
to the extent not already cancelled under Clause 18.16.1, cancel the Total Commitments; and/or
|
(B) |
to the extent not already due and payable pursuant to Clause 18.16.1, demand that all the Advances, together with accrued interest, and all other amounts accrued under this Agreement be immediately due and payable, whereupon they shall become immediately due and payable; and/or
|
(C) |
demand that all the Advances be payable on demand, whereupon they shall immediately become payable on demand.
|
19. |
THE ADMINISTRATIVE PARTIES
|
19.1 |
Appointment and duties of the Administrative Parties
|
19.2 |
Relationship
|
19.3 |
Majority Banks' directions
|
19.4 |
Delegation
|
19.5 |
Responsibility for documentation
|
19.5.1 |
the execution, genuineness, validity, enforceability or sufficiency of any Finance Document or any other document;
|
19.5.2 |
the collectability of amounts payable under any Finance Document; or
|
19.5.3 |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document.
|
19.6 |
Default
|
19.6.1 |
No Administrative Party is obliged to monitor or enquire as to whether or not a Default has occurred. No Administrative Party will be deemed to have knowledge of the occurrence of a Default. However, if an Administrative Party receives notice from a Party referring to this Agreement, describing the Default and stating that the event is a Default, it shall promptly notify the Banks.
|
19.6.2 |
Any Administrative Party may require the receipt of security satisfactory to it from the Banks whether by way of payment in advance or otherwise, against any liability or loss which it will or may incur in taking any proceedings or action arising out of or in connection with any Finance Document before it commences these proceedings or takes that action.
|
19.7 |
Exoneration
|
19.7.1 |
Without limiting Clause 19.7.2 below, no Administrative Party will be liable to any other Party for any action taken or not taken by it under or in connection with any Finance Document, unless directly caused by its negligence or wilful misconduct.
|
19.7.2 |
No Party may take any proceedings against any officer, employee or agent of any Administrative Party in respect of any claim it might have against that Administrative Party in respect of any act or omission of any kind (including negligence or wilful misconduct) by that officer, employee or agent in relation to any Finance Document.
|
19.7.3 |
No Administrative Party will be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:
|
(A) |
any act, event or circumstance not reasonably within its control; or
|
(B) |
the general risks of investment in, or the holding of assets in, any jurisdiction,
|
19.7.4 |
Without prejudice to any provision of any Finance Document excluding or limiting any Administrative Party's liability, any liability of an Administrative Party arising under or in connection with any Finance Document shall be limited to the amount of actual loss suffered (as determined by reference to the date of default of that Administrative Party or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to that Administrative Party at any time which increase the amount of that loss. In no event shall any Administrative Party be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not that Administrative Party has been advised of the possibility of such loss or damages.
|
19.8 |
Reliance
|
19.8.1 |
rely on any notice or document believed by it to be genuine and correct and to have been signed by, or with the authority of, the proper person;
|
19.8.2 |
rely on any statement made by a director or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify; and
|
19.8.3 |
engage, pay for and rely on legal or other professional advisers selected by it (including those in that Administrative Party's employment and those representing a Party other than that Administrative Party).
|
19.9 |
Credit approval and appraisal
|
19.9.1 |
has made its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by any Administrative Party in connection with any Finance Document; and
|
19.9.2 |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities while any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
19.10 |
Information
|
19.10.1 |
Each Administrative Party shall promptly forward to the person concerned the original or a copy of any document which is delivered to that Administrative Party by a Party for that person.
|
19.10.2 |
The Agent shall promptly supply a Bank with a copy of each document received by the Agent under Clauses 4 (Conditions Precedent) or 26.6 (Additional Borrowers) upon the request and at the expense of that Bank.
|
19.10.3 |
Except where this Agreement specifically provides otherwise, no Administrative Party is obliged to review or check the accuracy or completeness of any document it forwards to another Party.
|
19.10.4 |
Except as provided above, no Administrative Party has any duty:
|
(A) |
either initially or on a continuing basis to provide any Bank with any credit or other information concerning the financial condition or affairs of any Obligor or any related entity of any Obligor whether coming into its possession or that of any of its related entities before, on or after the Signing Date; or
|
(B) |
unless specifically requested to do so by a Bank in accordance with this Agreement, to request any certificates or other documents from any Obligor.
|
19.10.5 |
An Administrative Party may disclose the identity of a Defaulting Bank to the other Finance Parties and the Parent and shall disclose the same upon the written request of the Parent, a Borrower or the Majority Banks.
|
19.11 |
The Administrative Parties individually
|
19.11.1 |
If it is also a Bank, each Administrative Party has the same rights and powers under this Agreement as any other Bank and may exercise those rights and powers as though it were not an Administrative Party.
|
19.11.2 |
Each Administrative Party may:
|
(A) |
carry on any business with an Obligor or its related entities;
|
(B) |
act as agent or trustee for, or in relation to any financing involving, an Obligor or its related entities; and
|
(C) |
retain any profits or remuneration in connection with its activities under this Agreement or in relation to any of the foregoing.
|
19.12 |
Indemnities
|
19.12.1 |
Without limiting the liability of any Obligor under the Finance Documents, each Bank shall forthwith on demand indemnify each Administrative Party for its proportion of any cost, liability or loss incurred by that Administrative Party in any way relating to or arising out of its acting as an Administrative Party, except to the extent that the liability or loss arises directly from that Administrative Party's negligence or wilful misconduct.
|
19.12.2 |
A Bank's proportion of the liability or loss set out in Clause 19.12.1 above is the proportion which the Original US Dollar Amount of its Advance(s) bears to the Original US Dollar Amount of all Advances outstanding on the date of the demand. If, however, no Advances are outstanding on the date of demand, then the proportion will be the proportion which its Commitment bears to the Total Commitments at the date of demand or, if the Total Commitments have been cancelled, bore to the Total Commitments immediately before being cancelled.
|
19.12.3 |
The Parent shall forthwith on demand reimburse each Bank for any payment made by it under Clause 19.12.1 above except to the extent it arises out of the Bank's negligence or default.
|
19.13 |
Compliance
|
19.13.1 |
An Administrative Party may refrain from doing anything which might, in its opinion, constitute a breach of any law or regulation or be otherwise actionable at the suit of any person, and may do anything which, in its opinion, is necessary or desirable to comply with any law or regulation of any jurisdiction.
|
19.13.2 |
Without limiting Clause 19.13.1 above, an Administrative Party need not disclose any information relating to any Obligor or any of its related entities if the disclosure might, in the opinion of that Administrative Party constitute a breach of any law or regulation or any duty of secrecy or confidentiality or be otherwise actionable at the suit of any person.
|
19.14 |
Deduction from amounts payable by the Agent or the US Agent
|
19.15 |
Money held as banker
|
19.16 |
Resignation of an Administrative Party
|
19.16.1 |
Notwithstanding its irrevocable appointment an Administrative Party may resign by giving notice to the Banks and the Parent, in which case the Parent may (following consultation with the Banks) forthwith appoint a successor Administrative Party (which shall be a Bank or an Affiliate of a Bank) or, failing that, the retiring Administrative Party shall forthwith appoint its successor or, failing that, the Majority Banks shall appoint the successor Administrative Party.
|
19.16.2 |
The resignation of the retiring Administrative Party and the appointment of any successor Administrative Party will both become effective only upon the successor Administrative Party notifying all the Parties that it accepts the appointment. On giving the notification and receiving such approval, the successor Administrative Party will succeed to the position of the retiring Administrative Party and the term "Agent" or "US Agent" will mean the successor Agent or successor US Agent (as applicable).
|
19.16.3 |
The retiring Administrative Party shall, at its own cost, make available to its successor such documents and records and provide such assistance as the relevant successor Administrative Party may reasonably request for the purposes of performing its functions as the relevant Administrative Party under this Agreement.
|
19.16.4 |
Upon its resignation becoming effective, this Clause 19 shall continue to benefit the relevant retiring Administrative Party in respect of any action taken or not taken by it under or in connection with the Finance Documents while it was the Administrative Party and, subject to Clause 19.16.3 above, it shall have no further obligation under any Finance Document.
|
19.16.5 |
Notwithstanding the irrevocable appointment of an Administrative Party, after consultation with the Parent, the Majority Banks may, by notice to that Administrative Party require it to resign in accordance with Clause 19.16.1 above. In this event, such Administrative Party shall resign in accordance with Clause 19.16.1 above.
|
19.16.6 |
An Administrative Party shall resign in accordance with Clause 19.16.1 above if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to that Administrative Party under the Finance Documents:
|
(A) |
that Administrative Party fails to respond to a request under Clause 10.6 (FATCA) and an Obligor or a Bank reasonably believes that that Administrative Party will not be (or will have ceased to be) FATCA Exempt (as defined in Clause 10.6 (FATCA)) on or after that FATCA Application Date;
|
(B) |
the information supplied by that Administrative Party pursuant to Clause 10.6 (FATCA) indicates that that Administrative Party will not be (or will have ceased to be) FATCA Exempt on or after that FATCA Application Date; or
|
(C) |
that Administrative Party notifies an Obligor and the Banks that that Administrative Party will not be (or will have ceased to be) FATCA Exempt on or after that FATCA Application Date,
|
19.16.7 |
If an Administrative Party resigns pursuant to Clause 19.16.6 above:
|
(A) |
its successor shall be appointed in accordance with Clause 19.16.1 above; and
|
(B) |
such resignation shall only become effective when the successor Administrative Party notifies all the Parties that it accepts such appointment.
|
19.17 |
Replacement of an Administrative Party
|
19.17.1 |
After consultation with the Parent, the Majority Banks may, by giving 30 days' written notice to the relevant Administrative Party (or, at any time the relevant Administrative Party is an Impaired Agent, by giving any shorter notice determined by the Majority Banks) replace that Administrative Party by appointing a successor Administrative Party.
|
19.17.2 |
The retiring Administrative Party shall (at its own cost if it is an Impaired Agent and otherwise at the expense of the Banks) make available to the successor Administrative Party such documents and records and provide such assistance as the successor Administrative Party may reasonably request for the purposes of performing its functions as agent under the Finance Documents.
|
19.17.3 |
The appointment of the successor Administrative Party shall take effect on the date specified in the notice from the Majority Banks to the retiring Administrative Party. As from this date, the retiring Administrative Party shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 19 (and any agency fees for the account of the retiring Administrative Party shall cease to accrue from (and shall be payable on) that date).
|
19.17.4 |
Any successor Administrative Party and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
19.18 |
Banks
|
19.19 |
Regulatory Position
|
19.20 |
Chinese Wall
|
20. |
FEES
|
20.1 |
Commitment fee
|
20.1.1 |
The Borrowers shall pay to the US Agent for distribution to each Bank pro rata to the proportion its Commitment bears to the Total Commitments from time to time a commitment fee at the applicable Commitment Fee Rate on the undrawn, uncancelled amount of the Total Commitments for the Availability Period.
|
20.1.2 |
The commitment fee is calculated and accrues from the Signing Date on a daily basis and is payable quarterly in arrear during the Availability Period, with the first payment due three months after the Signing Date for the period from the Signing Date and on the last day of the Availability Period. Accrued commitment fee is also payable to the US Agent for the relevant Bank(s) on the cancelled amount of its Commitment at the time the cancellation takes effect.
|
20.1.3 |
No commitment fee is payable to the US Agent (for the account of a Bank) on any Available Commitment of a Bank on any day on which such Bank is a Bank in relation to which (i) any of the events or circumstances referred to in paragraph (a), (b) or (c) of the definition of "Defaulting Bank" has occurred and (ii) in so far as such event or circumstance relates to paragraph (c) of the definition of "Defaulting Bank", a notice of cancellation has been despatched by the Parent to the Agent under Clause 7.7 (Right of cancellation in relation to a Defaulting Bank) (such Bank being a "Disenfranchised Bank").
|
20.1.4 |
In this Clause 20.1, "Commitment Fee Rate" means:
|
(A) |
from and including the Signing Date to and excluding the date falling one month after the Signing Date, 5 per cent. of the applicable Margin;
|
(B) |
from and including the date falling one month after the Signing Date to and excluding the date falling two months after the Signing Date, 10 per cent. of the applicable Margin;
|
(C) |
from and including the date falling two months after the Signing Date to and excluding the date falling three months after the Signing Date, 20 per cent. of the applicable Margin;
|
(D) |
thereafter, 30 per cent. of the applicable Margin.
|
20.1.5 |
For the purpose of calculating the commitment fee, the applicable Margin will be determined on the basis of a deemed Corporate Credit Rating of BBB and a deemed Issuer Rating of Baa2.
|
20.2 |
Administrative Party fees
|
20.2.1 |
The Parent shall, on behalf of the Borrowers, pay to each Administrative Party for its own account agency fees in the amounts and on the dates agreed in the relevant Fee Letter.
|
20.2.2 |
The fees, commissions and expenses payable to an Administrative Party for services rendered and the performance of its obligations under this Agreement shall not be abated by any remuneration or other amounts or profits receivable by that Administrative Party (or by any of its associates) in connection with any transaction effected by that Administrative Party with or for the Banks or the Parent.
|
20.3 |
Up-front fee
|
20.4 |
Extension fee
|
20.5 |
Duration fee
|
20.6 |
VAT
|
21. |
EXPENSES
|
21.1 |
Initial and special costs
|
21.1.1 |
the negotiation, preparation, printing and execution of:
|
(A) |
this Agreement and any other documents referred to in this Agreement, and
|
(B) |
any other Finance Document (other than a Novation Certificate) executed after the Signing Date;
|
21.1.2 |
any amendment waiver, consent or suspension of rights (or any proposal for any of the foregoing) requested by or on behalf of an Obligor and relating to a Finance Document or a document referred to in any Finance Document; and
|
21.1.3 |
any other matter, not of an ordinary administrative nature, arising out of or in connection with a Finance Document.
|
21.2 |
Enforcement costs
|
21.2.1 |
in connection with the enforcement of, or the preservation of any rights under, any Finance Document; or
|
21.2.2 |
in investigating any possible Default of which an Obligor or the Majority Banks have given notice.
|
22. |
STAMP DUTIES
|
23. |
INDEMNITIES
|
23.1 |
Currency indemnity
|
23.1.1 |
If a Finance Party receives an amount in respect of an Obligor's liability under the Finance Documents or if that liability is converted into a claim, proof, judgment or order in a currency other than the currency (the "contractual currency") in which the amount is expressed to be payable under the relevant Finance Document:
|
(A) |
that Obligor shall indemnify that Finance Party as an independent obligation against any loss or liability arising out of or as a result of the conversion;
|
(B) |
if the amount received by that Finance Party, when converted into the contractual currency at a market rate in the usual course of its business, is less than the amount owed in the contractual currency, the Obligor concerned shall forthwith on demand pay to that Finance Party an amount in the contractual currency equal to the deficit; and
|
(C) |
the Obligor shall pay to the Finance Party concerned on demand any exchange costs and taxes payable in connection with any such conversion.
|
23.1.2 |
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency other than that in which it is expressed to be payable.
|
23.2 |
Other indemnities
|
23.2.1 |
The Parent shall forthwith on demand indemnify each Finance Party against any loss or liability which that Finance Party incurs as a consequence of:
|
(A) |
the occurrence of any Event of Default;
|
(B) |
the operation of Clause 18.16 (Acceleration) or Clause 29 (Pro Rata Sharing);
|
(C) |
any payment of principal or an overdue amount being received from any source otherwise than on a Term End Date (and, for the purposes of this paragraph (C), the Term End Date of an overdue amount is the last day of each Designated Term (as defined in Clause 8.4 (Default interest)));
|
(D) |
the occurrence of a change described in, and the operation of Clause 11.4 (Change in circumstances) in relation to, an Optional Currency; or
|
(E) |
(other than by reason of negligence or default by a Finance Party) an Advance not being disbursed after a Borrower has delivered a Request for that Advance.
|
23.2.2 |
The Parent shall promptly indemnify each Finance Party, each Arranger and their respective officers or employees against any cost, loss, liability or reasonable expense directly incurred by that Finance Party or Arranger (or its officers or employees) in connection with or arising out of the Acquisition or the funding of the Acquisition (including but not limited to those incurred in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry concerning the Acquisition), unless such loss or liability is caused by the fraud, negligence or wilful misconduct of that Finance Party or Arranger (or its employees or officers). Any officer or employee of a Finance Party and an Arranger may rely on this Clause 23.2.2.
|
23.3 |
Indemnity
|
24. |
EVIDENCE AND CALCULATIONS
|
24.1 |
Accounts
|
24.2 |
Certificates and determinations
|
24.3 |
Calculations
|
25. |
AMENDMENTS AND WAIVERS
|
25.1 |
Procedure
|
25.1.1 |
Subject to Clause 25.2 (Exceptions), any term of the Finance Documents may be amended or waived with the agreement of the Parent and the Agent (acting on the instructions of the Majority Banks). The Agent may effect, on behalf of the Banks, any amendment or waiver permitted by this Clause 25.1.1.
|
25.1.2 |
The Agent shall promptly notify the other Parties of any amendment or waiver effected under Clause 25.1.1 above, and any such amendment or waiver shall be binding on all the Parties.
|
25.2 |
Exceptions
|
25.2.1 |
An amendment or waiver which relates to:
|
(A) |
the definition of "Majority Banks" in Clause 1.1 (Definitions);
|
(B) |
an extension of the date for, or a decrease in an amount or a change in the currency of, any payment under the Finance Documents;
|
(C) |
an increase in a Bank's Commitment;
|
(D) |
a change in the guarantee under Clause 14 (Guarantee);
|
(E) |
a term of a Finance Document which expressly requires the consent of each Bank; or
|
(F) |
Clause 29 (Pro Rata Sharing) or this Clause 25 (Amendments and Waivers),
|
25.2.2 |
An amendment or waiver which relates to the rights or obligations of an Administrative Party (in its capacity as such) may not be effected without the consent of that Administrative Party.
|
25.3 |
Waivers and remedies cumulative
|
25.3.1 |
may be exercised as often as necessary;
|
25.3.2 |
are cumulative and not exclusive of its rights under the general law; and
|
25.3.3 |
may be waived only in writing and specifically.
|
26. |
CHANGES TO THE PARTIES
|
26.1 |
Transfers by Obligors
|
26.2 |
Transfers by Banks
|
26.2.1 |
A Bank (the "Existing Bank") may at any time assign, transfer, novate or sub-participate any of its rights and/or obligations under this Agreement to another person (the "New Bank") provided that:
|
(A) |
the Parent shall have given its prior written consent to such assignment, transfer, novation or sub-participation (such consent not to be unreasonably withheld or delayed, having regard (without limitation) to the relative credit rating of the New Bank and the other Banks), except that such consent shall not be required if an Event of Default is outstanding or where the New Bank is an Existing Bank or is an Affiliate of the Existing Bank or any other Bank; and
|
(B) |
in the case of a partial assignment, transfer or novation of rights and/or obligations, a minimum amount of US$5,000,000 (unless to an Affiliate of the Existing Bank or the Agent agrees otherwise) must be assigned, transferred or novated.
|
26.2.2 |
A transfer of obligations will be effective only if either:
|
(A) |
the obligations are novated in accordance with Clause 26.3 (Procedure for novations); or
|
(B) |
the New Bank confirms to the Agent and the Parent that it undertakes to be bound by the terms of this Agreement as a Bank in form and substance satisfactory to the Agent and the Parent. On the transfer
|
becoming effective in this manner the Existing Bank shall be relieved of its obligations under this Agreement to the extent that they are transferred to the New Bank.
|
26.2.3 |
On each occasion an Existing Bank assigns, transfers or novates any of its rights and/or obligations under this Agreement (other than to an Affiliate), the New Bank shall, on the date the assignment, transfer and/or novation takes effect, pay to the Agent for its own account a fee of £2,500.
|
26.2.4 |
An Existing Bank is not responsible to a New Bank for:
|
(A) |
the execution, genuineness, validity, enforceability or sufficiency of any Finance Document or any other document;
|
(B) |
the collectability of amounts payable under any Finance Document; or
|
(C) |
the accuracy of any statements (whether written or oral) made in connection with any Finance Document.
|
26.2.5 |
Each New Bank confirms to the Existing Bank and the other Finance Parties that it:
|
(A) |
has made its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Bank in connection with any Finance Document; and
|
(B) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities while any amount is or may be outstanding under this Agreement or any Commitment is in force.
|
26.2.6 |
Nothing in any Finance Document obliges an Existing Bank to:
|
(A) |
accept a re-transfer from a New Bank of any of the rights and/or obligations assigned, transferred or novated under this Clause 26.2; or
|
(B) |
support any losses incurred by the New Bank by reason of the non-performance by any Obligor of its obligations under this Agreement or otherwise.
|
26.2.7 |
Any reference in this Agreement to a Bank includes a New Bank but excludes a Bank if no amount is or may be owed to or by it under this Agreement and its Commitment has been cancelled or reduced to nil.
|
26.3 |
Procedure for novations
|
26.3.1 |
A novation is effected if:
|
(A) |
the Existing Bank and the New Bank deliver to the Agent a duly completed certificate (a "Novation Certificate"), substantially in the form of Part I of Schedule 4 (Forms of Accession Documents), with such amendments as the Agent approves to achieve a substantially similar effect (which may be delivered by fax and confirmed by delivery of a hard copy original but the fax will be effective irrespective of whether confirmation is received); and
|
(B) |
the Agent (except if the novation is to an Existing Bank or an Affiliate of the Existing Bank or any other Bank) executes it. The Agent shall only be obliged to execute a Novation Certificate delivered to it by the Existing Bank and the New Bank once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Bank.
|
26.3.2 |
Each Party (other than the Existing Bank, the New Bank and the Parent) irrevocably authorises the Agent to execute any duly completed Novation Certificate on its behalf.
|
26.3.3 |
To the extent that they are expressed to be the subject of the novation in the Novation Certificate:
|
(A) |
the Existing Bank and the other Parties (the "Existing Parties") will be released from their obligations to each other (the "discharged obligations");
|
(B) |
the New Bank and the Existing Parties will assume obligations towards each other which differ from the discharged obligations only insofar as they are owed to or assumed by the New Bank instead of the Existing Bank;
|
(C) |
the rights of the Existing Bank against the Existing Parties and vice versa (the "discharged rights") will be cancelled; and
|
(D) |
the New Bank and the Existing Parties will acquire rights against each other which differ from the discharged rights only insofar as they are exercisable by or against the New Bank instead of the Existing Bank,
|
26.3.4 |
If the effective date of a novation (other than a novation by an Existing Bank to an Affiliate) is after the date a Request is received by the Agent but before the date the requested Advance is disbursed to the relevant Borrower, the Existing Bank shall be obliged to participate in that Advance in respect of its discharged obligations notwithstanding that novation, and the New Bank shall reimburse the Existing Bank for its participation in that Advance and all interest and fees thereon up to the date of reimbursement (in each case to the extent attributable to the discharged obligations) within three Business Days of the Utilisation Date of that Advance.
|
26.4 |
Security over Bank's Rights
|
26.4.1 |
release a Bank from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Bank as party to any of the Finance Documents; or
|
26.4.2 |
affect the obligations of the Obligors under the Finance Documents or require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Bank under the Finance Documents.
|
26.5 |
Pro rata interest settlement
|
26.5.1 |
If the Agent has notified the Banks that it is able to distribute interest payments on a "pro rata basis" to Existing Banks and New Banks then (in respect of any transfer pursuant to Clause 26.2 (Transfers by Banks) or a novation pursuant to Clause 26.3 (Procedure for novations) the date on which the transfer or novation effective (the "Transfer Date") of which, in each case, is after the date of such notification and is not on a Term End Date):
|
(A) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Bank up to but excluding the Transfer Date ("Accrued Amounts") and shall become due and payable to the Existing Bank (without further interest accruing on them) on the Term End Date of the current Term (or, if the Term is longer than six months, on the next of the dates which falls at six monthly intervals after the first day of that Term); and
|
(B) |
the rights assigned or transferred by the Existing Bank will not include the right to the Accrued Amounts so that, for the avoidance of doubt:
|
(1) |
when the Accrued Amounts become payable, those Accrued Amounts will be payable for the account of the Existing Bank; and
|
(2) |
the amount payable to the New Bank on that date will be the amount which would, but for the application of this Clause 26.5, have been payable to it on that date, but after deduction of the Accrued Amounts.
|
26.5.2 |
In this Clause 26.5, references to "Term" shall be construed to include a reference to any other period for accrual of fees.
|
26.6 |
Additional Borrowers
|
26.6.1 |
If the Parent wishes one of its wholly-owned Subsidiaries to become an Additional Borrower, then it may (if each of the Finance Parties have approved the identity of the Additional Borrower in writing) deliver to the Agent the documents listed in Part II of Schedule 2 (Conditions Precedent Documents).
|
26.6.2 |
On delivery of a Borrower Accession Agreement, executed by the relevant Subsidiary and the Parent, the Subsidiary concerned will become an Additional Borrower. However, it may not submit a Request until the Agent confirms to the other Finance Parties and the Parent that it has received all the documents referred to in Clause 26.6.1 above in form and substance satisfactory to it.
|
26.6.3 |
Delivery of a Borrower Accession Agreement, executed by the relevant Subsidiary and the Parent, constitutes confirmation by that Subsidiary that the representations and warranties set out in Clause 15 (Representations and Warranties), except for Clause 15.8 (Litigation), Clause 15.9 (Material adverse change), Clause 15.10 (Accounts) and Clause 15.11 (Sanctions)), deemed to be made by it on the date of the Borrower Accession Agreement are correct, as if made with reference to the facts and circumstances then existing.
|
26.7 |
Bank Retirement
|
26.7.1 |
Without prejudice to Clause 26.13 (Replacement of a Defaulting Bank), the Parent may, at any time whilst an Event of Default is not continuing, require a Bank to retire from the Facilities by giving at least ten Business Days' notice to the Administrative Parties and the relevant Bank.
|
26.7.2 |
If the Parent has given its prior written consent to such retirement (which consent may be withheld in the Parent's absolute discretion), a Bank may retire from the Facilities by giving at least ten Business Days' notice to the Administrative Parties and the Parent.
|
26.7.3 |
On expiry of a notice (a "Retirement Notice") given pursuant to Clause 26.7.1 or 26.7.2 then, at the Parent's option:
|
(1) |
the Commitment of the relevant Bank shall be automatically cancelled;
|
(2) |
each Borrower shall repay any Advances made to it by the relevant Bank together with all accrued interest on the amount repaid, all accrued commitment fees on the cancelled Commitment, and any other amounts payable by it to that Bank under this Agreement (including under Clause 23.2.1(C) (Other indemnities)); and
|
(3) |
(upon payment of the amounts referred to in sub-paragraph (2) above) the relevant Bank shall cease to be a Party to this Agreement and shall cease to have any rights or obligations hereunder (other than in respect of any amounts referred to in sub-paragraph (2) subsequently required by a court of competent jurisdiction to be repaid by the relevant Bank to any person); or
|
(B) |
the relevant Bank shall novate to another bank or financial institution selected by the Parent its Commitment and the Advances made by it in accordance with Clause 26.3 (Procedure for novations).
|
26.7.4 |
Any Retirement Notice is irrevocable once given.
|
26.8 |
Reference Banks
|
26.9 |
Register
|
26.10 |
Affiliates of Banks
|
26.10.1 |
Each Bank may fulfil its obligations in respect of any Advance through an Affiliate if:
|
(A) |
the relevant Affiliate is specified in this Agreement as a Bank or becomes a Bank by means of a Novation Certificate in accordance with this Agreement; and
|
(B) |
the Advances in which that Affiliate will participate are specified in this Agreement or in a notice given by that Bank to the Agent and the Borrowers.
|
26.10.2 |
If Clause 26.10.1 above applies, the Bank and its Affiliate will be treated as having a single Commitment and a single vote, but, for all other purposes, will be treated as separate Banks.
|
26.11 |
Increase
|
26.11.1 |
The Parent may by giving prior written notice to the Agent after the effective date of a cancellation of:
|
(A) |
the Available Commitments of a Defaulting Bank in accordance with Clause 7.7 (Right of cancellation in relation to a Defaulting Bank); or
|
(B) |
the Commitments of a Bank in accordance with Clause 13.1 (Illegality),
|
(1) |
the increased Total Commitments will be assumed by one or more Banks or other banks or financial institutions (each an "Increase Bank") selected by the Parent (each of which shall not be a member of the Group and which is acceptable to the Agent (acting reasonably)), and each of which confirms its willingness to assume and does assume all the obligations of a Bank corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Bank;
|
(2) |
each Obligor and any Increase Bank shall assume obligations towards one another and/or acquire rights against one another as that Obligor and the Increase Bank would have assumed and/or acquired had the Increase Bank been an Original Bank;
|
(3) |
each Increase Bank shall become a Party as a "Bank" and any Increase Bank and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Bank and those Finance Parties would have assumed and/or acquired had the Increase Bank been an Original Bank; and
|
(4) |
the Commitments of the other Banks shall continue in full force and effect.
|
26.11.2 |
An increase in the Total Commitments will only be effective on:
|
(A) |
the execution by the Agent of an Increase Confirmation from the relevant Increase Bank;
|
(B) |
in relation to an Increase Bank which is not a Bank immediately prior to the relevant increase, the performance by the Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Bank, the completion of which the Agent shall promptly notify to the Parent and the Increase Bank; and
|
(C) |
any increase in the Total Commitments shall take effect on the date specified by the Parent in the notice referred to in Clause 26.11.1 above or any later date on which the conditions set out in this Clause 26.11.2 are satisfied.
|
26.11.3 |
Each Increase Bank, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the relevant Bank or Banks in accordance with this Agreement on or prior to the date on which the increase becomes effective.
|
26.11.4 |
Unless the Agent otherwise agrees or the increased Commitment is assumed by an Existing Bank, the Obligors shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee of £2,000 and the Obligors shall promptly on demand pay the Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 26.11.
|
26.11.5 |
Clauses 26.2.4 to 26.2.6 (both inclusive), shall apply mutatis mutandis in this Clause 26.11 in relation to an Increase Bank as if references in that Clause to:
|
(A) |
an "Existing Bank" were references to all the Banks immediately prior to the relevant increase;
|
(B) |
the "New Bank" were references to that "Increase Bank"; and
|
(C) |
a "re-transfer" and "re-assignment" were references to respectively a "transfer" and "assignment".
|
26.12 |
Disenfranchisement of a Bank
|
26.12.1 |
For so long as a Disenfranchised Bank (as such term is defined in Clause 20.1.3 (Commitment fee)) has any Available Commitment, in ascertaining the Majority Banks or whether any given percentage has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents, that Disenfranchised Bank's Commitments will be reduced by the amount of its Available Commitments.
|
26.12.2 |
For the purposes of this Clause 26.12, the Agent may assume that the following Banks are Disenfranchised Banks:
|
(A) |
any Bank which has notified the Agent that it has become a Disenfranchised Bank; and
|
(B) |
any Bank in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of "Defaulting Bank" has occurred and, in so far as such event or circumstance relates to paragraph (c) of the definition of "Defaulting Bank", it has received a notice of cancellation from the Parent in respect of that Bank pursuant to Clause 7.7 (Right of cancellation in relation to a Defaulting Bank),
|
26.13 |
Replacement of a Defaulting Bank
|
26.13.1 |
Without prejudice to Clause 26.7 (Bank Retirement), the Parent may, at any time a Bank has become and continues to be a Defaulting Bank, by giving five Business Days' prior written notice to the Agent and such Bank:
|
(A) |
replace such Bank by requiring such Bank to (and such Bank shall) transfer pursuant to this Clause 26 (Changes to the Parties) all (and not part only) of its rights and obligations under this Agreement; or
|
(B) |
require such Bank to (and such Bank shall) transfer pursuant to this Clause 26 (Changes to the Parties) all (and not part only) of the undrawn Commitments of the Bank,
|
26.13.2 |
The Agent may in its absolute discretion (and is authorised by each Finance Party, but is not obliged by the Obligors, to) execute, without requiring any further consent or action from any other Party, a Novation Certificate on behalf of any Defaulting Bank which is required to transfer its rights and obligations under this Agreement pursuant to Clause 26.13 above which shall be effective for the purposes of Clause 26.3 (Procedure for novations). The Agent shall not be liable
|
in any way for any action taken by it pursuant to this Clause 26.13 and, for the avoidance of doubt, the provisions of Clause 19.7 (Exoneration) shall apply in relation thereto.
|
26.13.3 |
Any transfer of rights and obligations of a Defaulting Bank pursuant to this Clause 26.13 shall be subject to the following conditions:
|
(A) |
neither the Agent nor the Defaulting Bank shall have any obligation to the Obligors to find a Replacement Bank;
|
(B) |
the transfer must take place no later than seven days after the notice referred to in Clause 26.13.1 above; and
|
(C) |
in no event shall the Defaulting Bank be required to pay or surrender to the Replacement Bank any of the fees received by the Defaulting Bank pursuant to the Finance Documents.
|
26.13.4 |
For the avoidance of doubt, the rights of the Obligors under Clause 26.7 (Bank Retirement) and Clause 26.13 (Replacement of a Defaulting Bank) are without prejudice to each other and the rights under each Clause are capable of being exercised independently of each other by the Obligors.
|
27. |
DISCLOSURE OF INFORMATION AND KNOW YOUR CUSTOMER REQUIREMENTS
|
27.1 |
Disclosure of information
|
27.1.1 |
a copy of any Finance Document; and
|
27.1.2 |
any information which that Bank has acquired under or in connection with any Finance Document,
|
27.1.3 |
any of its Affiliates and any of its or their officers, directors, employees, professional advisers and auditors to the extent necessary in connection with the Facilities;
|
27.1.4 |
any person with whom it is proposing to enter, or has entered into, any kind of transfer, novation, participation or other agreement in relation to this Agreement;
|
27.1.5 |
a federal reserve, central bank or any authorised government body to whom a Bank is charging to, assigning to or otherwise creating a Security Interest in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document under Clause 26.4 (Security over Bank's Rights); or
|
27.1.6 |
any person to whom it is required to disclose such information under any law or regulation or by any taxation or regulatory authority,
|
(a) |
Clause 27.1.3 above unless such person is informed of its confidential nature and that some or all of such information may be price-sensitive information and such person is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to such information; and
|
(b) |
Clause 27.1.4 above (other than one of its Affiliates) unless that person has provided to that Bank a confidentiality undertaking addressed to that Bank and the Parent substantially in the form of Schedule 5 (Form of Confidentiality Undertaking) or such other form as the Parent may approve.
|
27.2 |
Disclosure to numbering service providers
|
27.2.1 |
Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification
|
numbering services in respect of this Agreement, the Facilities and/or one or more Obligors the following information:
|
(A) |
names of Obligors;
|
(B) |
country of domicile of Obligors;
|
(C) |
place of incorporation of Obligors;
|
(D) |
date of this Agreement;
|
(E) |
governing law of this Agreement;
|
(F) |
the names of the Agent, the US Agent and Arranger;
|
(G) |
date of each amendment and restatement of this Agreement;
|
(H) |
amounts of, and names of the Facilities (and any tranches);
|
(I) |
amount of Total Commitments;
|
(J) |
currencies of the Facilities;
|
(K) |
type of Facilities;
|
(L) |
ranking of Facilities;
|
(M) |
Final Maturity Date of the Facilities;
|
(N) |
changes to any of the information previously supplied pursuant to paragraphs (A) to (K) above; and
|
(O) |
such other information agreed between such Finance Party and the Parent,
|
27.2.2 |
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facilities and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
27.3 |
Know your Customer requirements
|
27.3.1 |
Each Obligor must promptly on the request of any Finance Party supply to that Finance Party any documentation or other evidence which is reasonably requested by that Finance Party (whether for itself, on behalf of any Finance Party or any prospective new Bank) to enable a Finance Party or prospective New Bank to carry out and be satisfied with the results of all applicable know your customer requirements.
|
27.3.2 |
Each Bank must promptly on the request of the Agent supply to the Agent any documentation or other evidence which is reasonably required by the Agent to carry out and be satisfied with the results of all applicable know your customer requirements.
|
28. |
SET-OFF
|
29. |
PRO RATA SHARING
|
29.1 |
Redistribution
|
29.1.1 |
the recovering Finance Party shall, within three Business Days, notify details of the recovery to the Agent;
|
29.1.2 |
the Agent shall determine whether the recovery is in excess of the amount which the recovering Finance Party would have received had the recovery been received and distributed in accordance with Clause 9 (Payments);
|
29.1.3 |
subject to Clause 29.3 (Exception), the recovering Finance Party shall, within three Business Days of demand by the Agent pay to the Agent an amount (the "redistribution") equal to the excess;
|
29.1.4 |
the Agent shall treat the redistribution as if it were a payment by the Obligor concerned under Clause 9 (Payments) and shall pay the redistribution to the Finance Parties (other than the recovering Finance Party) in accordance with Clause 9.8 (Partial payments); and
|
29.1.5 |
after payment of the full redistribution, the recovering Finance Party will be subrogated to the portion of the claims paid under Clause 29.1.4 above, and that Obligor will owe the recovering Finance Party a debt which is equal to the redistribution, immediately payable and of the type originally discharged.
|
29.2 |
Reversal of redistribution
|
29.2.1 |
a recovering Finance Party must subsequently return a recovery, or an amount measured by reference to a recovery, to an Obligor; and
|
29.2.2 |
the recovering Finance Party has paid a redistribution in relation to that recovery,
|
29.3 |
Exception
|
30. |
SEVERABILITY
|
30.1.1 |
the legality, validity or enforceability in that jurisdiction of any other provision of the Finance Documents; or
|
30.1.2 |
the legality, validity or enforceability in other jurisdictions of that or any other provision of the Finance Documents.
|
31. |
COUNTERPARTS
|
32. |
NOTICES
|
32.1 |
Giving of notices
|
32.1.1 |
if in writing, when delivered;
|
32.1.2 |
if by facsimile, when received; and
|
32.1.3 |
if by email or any other electronic communication, when received.
|
32.2 |
Addresses for notices
|
32.2.1 |
The address, facsimile number and email address of each Party (other than the Administrative Parties and the Parent) for all notices under or in connection with this Agreement are:
|
(A) |
that notified by that Party for this purpose to the Agent on or before it becomes a Party; or
|
(B) |
any other notified by that Party for this purpose to the Agent by not less than five Business Days' notice.
|
32.2.2 |
The address and facsimile number of the Agent are:
|
32.2.3 |
The address, facsimile number and email address of the US Agent are:
|
32.2.4 |
The address and facsimile number of the Parent are:
|
32.2.5 |
Notices to be served on an Obligor other than the Parent shall be validly served on such Obligor by being addressed in accordance with Clause 32.2.3 and marked as served on the Parent on behalf of the relevant Obligor.
|
32.2.6 |
The Agent shall, promptly upon request from any Party, give to that Party the address, facsimile number or email address of any other Party applicable at the time for the purposes of this Clause.
|
32.3 |
Communications when Agent is an Impaired Agent
|
33. |
LANGUAGE
|
33.1 |
Any notice given under or in connection with any Finance Document shall be in English.
|
33.2 |
All other documents provided under or in connection with any Finance Document shall be:
|
33.2.1 |
in English; or
|
33.2.2 |
if not in English, accompanied by a certified English translation and, in this case, the English translation shall prevail unless the document is a statutory or other official document.
|
34. |
JURISDICTION
|
34.1 |
Submission
|
34.2 |
Service of process
|
34.2.1 |
irrevocably appoints the Parent as its agent for service of process relating to any proceedings before the English courts in connection with any Finance Document (and the Parent accepts this appointment);
|
34.2.2 |
agrees that failure by a process agent to notify the Obligor of the process will not invalidate the proceedings concerned; and
|
34.2.3 |
consents to the service of process relating to any such proceedings by prepaid posting of a copy of the process to its address for the time being applying under Clause 32.2 (Addresses for notices).
|
34.3 |
Forum convenience and enforcement abroad
|
34.3.1 |
waives objection to the English courts on grounds of inconvenient forum or otherwise as regards proceedings in connection with a Finance Document; and
|
34.3.2 |
agrees that a judgment or order of an English court in connection with a Finance Document is conclusive and binding on it and may be enforced against it in the courts of any other jurisdiction.
|
34.4 |
Non-exclusivity
|
34.4.1 |
in any other court of competent jurisdiction; or
|
34.4.2 |
to the extent permitted by applicable law, concurrently in more than one jurisdiction.
|
35. |
WAIVER OF TRIAL BY JURY
|
36. |
GOVERNING LAW
|
37. |
US PATRIOT ACT
|
Bank of America Merrill Lynch International Limited
|
Citigroup Global Markets Limited
|
Deutsche Bank AG London Branch
|
HSBC Bank plc
|
The Royal Bank of Scotland plc
|
Bank
|
Facility A Commitments
|
Facility B Commitments
|
Facility C Commitments
|
Facility D Commitments
|
US$
|
US$
|
US$
|
US$
|
|
Bank of America, N.A.
|
3,000,000,000
|
1,000,000,000
|
500,000,000
|
500,000,000
|
Citibank, N.A., London Branch
|
2,400,000,000
|
800,000,000
|
400,000,000
|
400,000,000
|
Citicorp North America Inc.
|
600,000,000
|
200,000,000
|
100,000,000
|
100,000,000
|
Deutsche Bank AG London Branch
|
3,000,000,000
|
1,000,000,000
|
500,000,000
|
500,000,000
|
HSBC Bank plc
|
3,000,000,000
|
1,000,000,000
|
500,000,000
|
500,000,000
|
The Royal Bank of Scotland plc
|
3,000,000,000
|
1,000,000,000
|
500,000,000
|
500,000,000
|
Total
|
15,000,000,000
|
5,000,000,000
|
2,500,000,000
|
2,500,000,000
|
1. |
A copy of the articles of association and certificate of incorporation and by-laws (or equivalent constitutional documents) of each Obligor.
|
2. |
A copy of a resolution of the board of directors of each Obligor (or any duly authorised committee of any such board):
|
(a) |
approving the terms of, and the transactions contemplated by, the Finance Documents and resolving that it execute and, where applicable, deliver the Finance Documents to which it is a party;
|
(b) |
authorising a specified person or persons to execute and, where applicable, deliver the Finance Documents to which it is a party on its behalf; and
|
(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including Requests and Selection Notices) to be signed and/or despatched by it under or in connection with the Finance Documents.
|
3. |
A specimen of the signature of each person authorised by the resolutions referred to in paragraph 2 above.
|
4. |
A certificate of an officer of each Obligor confirming that the borrowing of the Total Commitments in full would not cause any borrowing limits binding on that Obligor to be exceeded.
|
5. |
A certificate of an authorised signatory of each Obligor certifying that each copy document specified in Part I of this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the Signing Date.
|
6. |
Legal opinion of Allen & Overy LLP in relation to English law.
|
7. |
Legal opinion of Cravath, Swaine & Moore LLP in relation to United States and relevant state laws.
|
8. |
Confirmation from the Parent that each of the Parent and Reynolds American Inc. has received the requisite shareholder approval required to approve the Acquisition.
|
9. |
A copy of the Merger Agreement.
|
10. |
Confirmation from the Parent that the registration statement on Form F-4, relating to the registration under the U.S. Securities Act of 1933, as amended (the "Securities Act") of the ordinary shares of the Parent to be issued in the Acquisition, shall have been declared effective under the Securities Act.
|
11. |
Confirmation from the Parent that any waiting period applicable to the Acquisition under the U.S. Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have been terminated or shall have expired.
|
1. |
A Borrower Accession Agreement, duly executed by the Additional Borrower and the Parent.
|
2. |
A copy of the articles of association and certificate of incorporation and by-laws or equivalent constitutional documents of the Additional Borrower.
|
3. |
A copy of a resolution of the board of directors of the Additional Borrower:
|
(a) |
approving the terms of, and the transactions contemplated by, the Borrower Accession Agreement and resolving that it execute the Borrower Accession Agreement;
|
(b) |
authorising a specified person or persons to execute the Borrower Accession Agreement on its behalf; and
|
(c) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices (including Requests and Selection Notices) to be signed and/or despatched by it under or in connection with this Agreement.
|
4. |
A copy of any other authorisation or other document, opinion or assurance which the Agent reasonably considers to be necessary in connection with the entry into and performance of, and the transactions contemplated by, the Borrower Accession Agreement or for the validity and enforceability of any Finance Document.
|
5. |
A specimen of the signature of each person authorised by the resolution referred to in paragraph 3 above.
|
6. |
The latest audited accounts of the Additional Borrower (if any).
|
7. |
A legal opinion of Allen & Overy LLP, English legal advisers to the Agent and, if applicable, other lawyers approved by the Agent in the place of incorporation of the Additional Borrower, addressed to the Finance Parties.
|
8. |
A certificate of an authorised signatory of the Additional Borrower certifying that each copy document specified in Part II of this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of the Borrower Accession Agreement.
|
9. |
A process agent appointment letter if the Additional Borrower is incorporated outside the United Kingdom.
|
1. |
We wish to utilise the Facilities as follows:
|
(a)
|
Name of Borrower:
|
||
(b)
|
Facility:
|
||
(c)
|
Utilisation Date:
|
||
(d)
|
Requested Amount (including currency):
|
||
(e)
|
Term:
|
||
(f)
|
Payment Instructions:
|
2.
|
We confirm that each condition specified in Clause [4.2 (Further conditions precedent)/4.3 (Certain Funds Utilisations)] of the Facility Agreement is satisfied on the date of this Request and this Advance would not cause any borrowing limit binding on us to be exceeded.
|
1. |
We [●] (the "Existing Bank") and [·] (the "New Bank") agree to the novation to the New Bank of all the Existing Bank's rights and obligations under the Facility Agreement referred to in the Schedule in accordance with Clause 26.3 (Procedure for novations).
|
2. |
The specified date for the purposes of Clause 26.3.3 (Procedure for novations) is [date of novation].
|
3. |
The Facility Office and address for notices of the New Bank for the purposes of Clause 32.2 (Addresses for notices) are set out in the Schedule.
|
4. |
This Novation Certificate, and any non-contractual obligations arising out of or in connection with it, are governed by English law. Capitalised terms used in this Novation Certificate have the meanings specified in the Facility Agreement.
|
1 |
If the New Bank holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Facility Agreement, it must comply with the obligations set out in clause 10.5 of the Facility Agreement.
|
(1) | [ |
] (the "Existing Borrower");
|
(2) | [ |
] (the "Substitute Borrower");
|
(3) |
British American Tobacco p.l.c. on behalf of itself and each other Obligor (such capitalised term are defined in the Facility Agreement referred to below) the ("Parent"); and
|
(4) |
HSBC Bank plc as agent (the "Agent") on behalf of itself and the Finance Parties (as defined in the Facility Agreement referred to below),
|
1. |
Novation
|
2. |
Integration
|
3. |
Continuing Liability
|
1. |
We refer to the Facility Agreement. This agreement (the "Agreement") shall take effect as an Increase Confirmation for the purpose of the Facility Agreement. Terms defined in the Facility Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
|
2. |
We refer to Clause 26.11 (Increase) of the Facility Agreement.
|
3. |
The Increase Bank agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the Schedule (the "Relevant Commitment") as if it was an Original Bank under the Facility Agreement.
|
4. |
The proposed date on which the increase in relation to the Increase Bank and the Relevant Commitment is to take effect (the "Increase Date") is [ ].
|
5. |
On the Increase Date, the Increase Bank becomes party to the relevant Finance Documents as a Bank.
|
6. |
The Facility Office and address, fax number, attention, credit contact and loan administration contact details for notices to the Increase Bank for the purposes of Clause 32.2 (Addresses for notices) are set out in the Schedule.
|
7. |
The Increase Bank expressly acknowledges the limitations on the Banks' obligations referred to in Clause 26.11 (Increase).
|
8. |
The Increase Bank confirms that it is not an Affiliate of the Parent.
|
9. |
This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
|
10. |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
11. |
This Agreement has been entered into on the date stated at the beginning of this Agreement.
|
2 |
If the Increase Bank holds a passport under the HMRC DT Treaty Passport scheme and wishes that scheme to apply to the Facility Agreement, it must comply with the obligations set out in clause 10.5 of the Facility Agreement.
|
1. |
We hereby give you notice pursuant to [Clause 2.4.1 (Facility A Extension Option)]/ [Clause 2.4.2 (Facility B Extension Option)]3 of the Facility Agreement that we request to extend [Facility A] / [Facility B]4, so that the [Facility A Final Maturity Date] / [Facility B Final Maturity Date]5 be extended to the date falling [18/24/30/36]6 months after the Start Date.
|
2. |
We confirm that as at the date of this Extension Notice:
|
(a) |
the representations and warranties in Clause 15 (Representations and Warranties) of the Facility Agreement except for Clause 15.8 (Litigation), Clause 15.9 (Material adverse change) and Clause 15.11 (Sanctions) are correct; and
|
(b) |
no Event of Default is outstanding.
|
3. |
Capitalised terms used in this Extension Notice bear the meaning given to them in the Facility Agreement.
|
1. |
This Selection Notice is irrevocable. Capitalised terms used in this Selection Notice bear the meaning given to them in the Facility Agreement.
|
2. |
We refer to the following Advance[s] under [identify Facility] in [identify currency] with a Term ending on [ ]*.
|
3. |
[We request that the next Term for the above Advance[s] is [ ]].
|
* |
Insert details of all Advances in the same currency which have a Term ending on the same date.
|
● |
Reynolds shareholders will receive for each Reynolds share $29.44 in cash and 0.5260 BAT ordinary shares which shall be represented by BAT American Depository Receipts (ADRs) listed on the New York Stock Exchange
|
● |
Based on BAT’s share price and the Dollar-Sterling exchange rate as at market close on 16 January 20171, this implies a total current value of $59.64 per Reynolds share and a total current value of approximately $49.4 billion for the 57.8% of Reynolds not already owned by BAT
|
● |
Represents a premium of 26% over the closing price of Reynolds common stock on 20 October 2016 (being the last day prior to BAT’s announcement of a proposal to merge with Reynolds)
|
● |
NYSE-listed Level III ADRs representing BAT ordinary shares will be issued following registration under US securities laws
|
● |
A balanced presence in high growth emerging markets and high profitability developed markets, combined with direct access to the attractive US market
|
● |
A portfolio of strong, growing global brands, bringing together ownership of Newport, Kent and Pall Mall
|
● |
A truly global NGP business, with a world class pipeline of vapour and tobacco heating products and access to the fastest growing NGP markets
|
● |
At least $400m of annualised cost synergies anticipated by the end of year 3, supporting continued margin improvement
|
● |
EPS and DPS accretive in the first full year and targeting mid-single digit EPS accretion in year 3, with the transaction beating the Group’s WACC for the US by year 5.
|
● |
Enhanced cash generation with increased control of a significant proportion of group cash flows
|
● |
Continued commitment to BAT’s dividend policy with a payout ratio of at least 65%
|
● |
A continuing strong financial profile, targeting a solid investment grade credit rating through progressive deleveraging
|
BAT Press Office
+44 (0)207 845 2888 (24 hours)
|
BAT Investor Relations
Mike Nightingale / Rachael Brierley / Sabina Marshman
+44 (0)207 845 1180 / 1519 / 1781
|
FTI Consulting (UK PR agency)
John Waples +44 (0)20 3727 1515
Edward Bridges +44 (0)20 3727 1067
David Waller +44 (0)20 3727 1651
|
Sard Verbinnen & Co. (US PR agency)
US: George Sard / Jim Barron +1 212 687 8080
UK: Michael Henson +44 (0)20 3178 8914
|
Centerview Partners
UK: Nick Reid / Hadleigh Beals
+44 (0)207 409 9700
|
Deutsche Bank
UK: Nigel Meek / James Ibbotson
Matt Hall / Jimmy Bastock (Corporate Broking)
+44 (0)207 545 8000
|
US: Blair Effron
+1 212 380 2650
|
US: James Stynes
+1 212 250 2500
|
UBS
UK: John Woolland / James Robertson
David Roberts (Corporate Broking)
+44 (0)207 568 1000
|
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