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Section 1: 8-K (8-K)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

 

Date of report (Date of earliest event reported): May 30, 2017

 

Janus Henderson Group plc

(Exact Name of Registrant as Specified in its Charter)

 

Jersey, Channel Islands

 

001-38103

 

N/A

(State or Other Jurisdiction
of Incorporation)

 

(Commission
File Number)

 

(IRS Employer
Identification No.)

 

201 Bishopsgate

EC2M 3AE

United Kingdom

(Address of Principal Executive Offices and Zip Code)

 

Registrant’s telephone number, including area code: +44 (0) 20 7818 1818

 

Henderson Group plc

(Former name or former address if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

 

o

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

 

o

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

 

o

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company o

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o

 

 

 



 

Introductory Note

 

On May 30, 2017 (the “Closing Date”), pursuant to the Agreement and Plan of Merger, dated as of October 3, 2016 (the “Merger Agreement”) by and among Janus Capital Group Inc., a Delaware corporation (“Janus”), Henderson Group plc, a company incorporated in Jersey (“Henderson”), and Horizon Orbit Corp., a Delaware corporation and a direct and wholly owned subsidiary of Henderson (“Merger Sub”), Merger Sub merged with and into Janus, with Janus surviving such merger as a direct and wholly owned subsidiary of Henderson (the “Merger”). Upon closing of the Merger, Henderson became the parent holding company for the combined group and was renamed Janus Henderson Group plc (“Janus Henderson”) or (the “Company”).

 

Upon closing of the Merger, a holder of Janus common stock received 0.47190 fully paid and non-assessable Janus Henderson ordinary shares, par value $1.50 per share (the “Ordinary Shares”), for each share of Janus common stock that it held, plus cash in lieu of any fractional shares based on prevailing market prices. Effective immediately prior to the closing of the Merger, Henderson implemented a share consolidation of Henderson ordinary shares, at a ratio of one Ordinary Share (or Chess Depositary Interest (“CDI”), as applicable) for every 10 Henderson ordinary shares (or CDIs, as applicable) outstanding.

 

The issuance of Ordinary Shares in connection with the Merger was registered under the Securities Act of 1933, as amended, pursuant to Janus Henderson’s registration statement on Form F- 4 (File No. 333- 216824) filed with the United States Securities and Exchange Commission (the “SEC”) on March 20, 2017 (the “Registration Statement”).

 

The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1.

 

Item 1.01. Entry into a Material Definitive Agreement.

 

Revolving Credit Facility

 

On February 16, 2017, Henderson entered into a five-year, $200.0 million unsecured, multi-currency revolving credit facility (the “Revolving Credit Facility”), with Bank of America Merrill Lynch International Limited as agent. The Revolving Credit Facility became effective upon closing of the Merger and may be used for general corporate purposes. The Revolving Credit Facility includes an option for Janus Henderson to request an increase to the overall amount of the Revolving Credit Facility of up to an additional $50.0 million.

 

The Revolving Credit Facility has a maturity date of February 16, 2022 with two one year extension options which can be exercised at the discretion of Janus Henderson with the lenders’ consent on the first and second anniversary of the date of the agreement, respectively. Janus Henderson may be required to prepay any borrowings upon a change of control.  It may also voluntarily prepay any borrowings on three business days’ notice without premium or penalty (subject to applicable breakage costs).

 

The Revolving Credit Facility is guaranteed by Janus (but only for such period as Janus’s 4.875% Notes due 2025 and Janus’s 0.75% Convertible Notes due 2018 are outstanding, in each case with Janus as issuer).

 

The Revolving Credit Facility bears interest on borrowings outstanding at the relevant interbank offer rate plus a spread, which is based on Janus’s credit rating provided that if, following closing of the Merger, Janus Henderson obtains two or more credit ratings, then the credit rating in respect of Janus Henderson shall then be the relevant credit rating for the purposes of determining applicable margin. Interest is payable on the last day of selected interest periods (which may be one, two, three or six months or, in relation to borrowings in Australian dollars, one or six months).  Certain fees, including a commitment fee and utilization fees, are also payable under the Revolving Credit Facility.

 

The Revolving Credit Facility contains affirmative and negative covenants customarily applicable to such credit facilities, including (subject to negotiated exceptions) covenants restricting security, disposals and subsidiary indebtedness.  It also contains a financial covenant with respect to leverage. The financing leverage ratio cannot exceed 3.00x EBITDA.

 

The Revolving Credit Facility contains customary provisions relating to acceleration of payment obligations in an event of default, which include non-payment of amounts under the Revolving Credit Facility; covenant defaults, subject to grace periods for certain covenants; inaccurate representations or warranties in any material respect, commencement of insolvency proceedings and cross-default on other indebtedness.

 

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Janus Henderson Guarantee of Janus Convertible Notes

 

On May 30, 2017, Henderson, Janus and The Bank of New York Mellon Trust Company, N.A. (the “Trustee”) entered into the Fourth Supplemental Indenture (the “Fourth Supplemental Indenture”) to the indenture, dated as of November 6, 2001 (the “Base Indenture”), between Janus (formerly known as Stilwell Financial Inc.) and the Trustee (as successor to The Chase Manhattan Bank), as amended and supplemented by the Third Supplemental Indenture (the “Third Supplemental Indenture,” and together with the Base Indenture and the Fourth Supplemental Indenture the “Janus Convertible Notes Indenture”), dated as of June 19, 2013, providing for the issuance of Janus’s 0.75% Convertible Senior Notes due 2018 (the “Janus Convertible Notes”). The Fourth Supplemental Indenture became effective upon closing of the Merger.

 

Pursuant to the terms of the Fourth Supplemental Indenture Janus Henderson provided a full and unconditional guarantee (the “Janus Convertible Notes Guarantee”) of the obligations of Janus under the Janus Convertible Notes Indenture and the Janus Convertible Notes. In addition, the Fourth Supplemental Indenture provides that the right to convert each $1,000 principal amount of Janus Convertible Notes is changed into a right to convert such principal amount of Janus Convertible Notes into the kind and amount of shares of stock that a holder of a number of shares of Janus common stock equal to the conversion rate immediately prior to the effective time of the Merger would have been entitled to receive in the Merger.

 

The Janus Convertible Notes pay interest semiannually at a rate of 0.75% per annum on January 15 and July 15 of each year. Upon closing of the Merger the Janus Convertible Notes are convertible, under certain circumstances, into cash, Ordinary Shares, or a combination of cash and Ordinary Shares, at Janus’s election, at a conversion rate of 44.4712 Ordinary Shares per $1,000 principal amount of Janus Convertible Notes, which is equivalent to an initial conversion price of approximately $22.49 per Ordinary Share, subject to adjustment in certain circumstances including the occurrence of a Fundamental Change (as defined in the Third Supplemental Indenture). The Janus Convertible Notes will mature on July 15, 2018, unless earlier converted or repurchased.  The Janus Convertible Notes are not redeemable prior to maturity.  Janus is required to offer to repurchase the Janus Convertible Notes following a Fundamental Change at a price equal to 100% of the principal amount of the Janus Convertible Notes to be purchased, plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Purchase Date (as defined in the Third Supplemental Indenture).

 

The foregoing descriptions of the Base Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture and the form of the Janus Convertible Notes are qualified in their entirety by reference to such documents, copies of which are filed herewith as Exhibit 4.1, Exhibit 4.2, Exhibit 4.3 and Exhibit 4.6, respectively, hereto and are incorporated into this Item 1.01 by reference.

 

Janus Henderson Guarantee of Janus 2025 Notes

 

On May 30, 2017,  Henderson, Janus and the Trustee entered into the Fifth Supplemental Indenture (the “Fifth Supplemental Indenture”) to the Base Indenture, as amended and supplemented by the Officers’ Certificate (the “Officers’ Certificate,” and together with the Base Indenture and the Fifth Supplemental Indenture the “Janus 2025 Notes Indenture”), dated as of July 31, 2015, providing for the issuance of Janus’s 4.875% Notes due 2025 (the “Janus 2025 Notes”). The Fifth Supplemental Indenture became effective upon closing of the Merger. Pursuant to the terms of the Fifth Supplemental Indenture Janus Henderson provided a full and unconditional guarantee (the “Janus 2025 Notes Guarantee”) of the obligations of Janus under the Janus 2025 Notes Indenture and the Janus 2025 Notes.

 

Interest on the Janus 2025 Notes is payable semi-annually, in arrears, on February 1 and August 1 of each year. The Janus 2025 Notes will mature on August 1, 2025. If Janus experiences a change of control (as defined in the Officers’ Certificate) and in connection therewith the Janus 2025 Notes become rated below investment grade by S&P and Moody’s, Janus must offer to repurchase all Janus 2025 Notes at a price equal to 101% of the principal amount plus accrued and unpaid interest thereon, if any, to the repurchase date.

 

The Janus 2025 Notes may be redeemed prior to May 1, 2025 (three months prior to the maturity date of the Janus 2025 Notes) at Janus’s option in whole or in part at any time or from time to time at the greater of (i) 100% of the principal amount and (ii) a “make-whole” redemption price. In addition, the Janus 2025 Notes may be redeemed on or after May 1, 2025 at Janus’s option in whole or in part at any time or from time to time at 100% of the principal amount of the Janus 2025 Notes being redeemed. In the case of any such redemption, Janus will also pay accrued and unpaid interest thereon, if any, to the redemption date.

 

The foregoing descriptions of the Base Indenture, the Officers’ Certificate, the Fifth Supplemental Indenture and the form of the Janus 2025 Notes are qualified in their entirety by reference to such documents, copies of which are filed

 

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herewith as Exhibit 4.1, Exhibit 4.4, Exhibit 4.5 and Exhibit 4.7, respectively, hereto and are incorporated into this Item 1.01 by reference.

 

Item 2.01. Completion of Acquisition or Disposition of Assets.

 

The information provided in the Introductory Note of this Current Report on Form 8-K is incorporated herein by reference.

 

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

 

Item 3.02 Unregistered Sale of Equity Securities.

 

Upon closing of the Merger, pursuant to the terms of the option agreement, dated as of October 3, 2016, between Janus Henderson and Dai-ichi, Janus Henderson granted Dai-ichi 20 tranches of conditional options with each tranche allowing Dai-ichi to subscribe for or purchase 500,000 Janus Henderson ordinary shares at a strike price of 2,997.2 pence per share (the terms of such options having been adjusted in accordance with the terms of the Dai-ichi option agreement to take account of the effect of the share consolidation). The options will be exercisable by Dai-ichi for the period from closing of the Merger until October 3, 2018. The price that Dai-ichi paid at closing for the purchase of the options is £19,778,800.00. In aggregate, the options sold to Dai-ichi would, if exercised at closing of the Merger (and subject to relevant regulatory approvals), entitle Dai-ichi to purchase an additional approximately 5% of the ordinary shares of Janus Henderson.

 

Item 3.03 Material Modification to Rights of Security Holders.

 

The information set forth in Item 5.03 of this Current Report on Form 8-K is incorporated herein by reference.

 

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Board of Directors

 

In connection with the Merger, effective upon closing of the Merger, Timothy How, Robert Jeens, Roger Thompson and Phil Wagstaff resigned from the board of directors of Henderson. There were no disagreements between the directors tendering their resignations and Henderson on any matter relating to Henderson’s operations, policies or practices.

 

Additionally, effective upon closing of the Merger, the following individuals were appointed to the board of directors (the “Board”) of Janus Henderson: Glenn Schafer, Richard Weil, Jeffrey Diermeier, Eugene Flood Jr., Lawrence Kochard and Tatsusaburo Yamamoto. After giving effect to such resignations and appointments, the Board of Janus Henderson currently consists of the following individuals:

 

Richard Gillingwater

Glenn Schafer

Andrew Formica

Richard Weil

Sarah Arkle

Kalpana Desai

Jeffrey Diermeier

Kevin Dolan

Eugene Flood Jr.

Lawrence Kochard

Angela Seymour-Jackson

Tatsusaburo Yamamoto

 

Richard Gillingwater serves as Chairman of the Board. Glenn Schafer, serves as Deputy Chairman of the Board. Dai-ichi Life Holdings, Inc. (“Dai-ichi”) is entitled to nominate a director to the Board pursuant to the terms of the amended and restated investment and strategic cooperation agreement with Janus Henderson. Mr. Yamamoto is the initial Dai-ichi representative to the Board.

 

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Any individual independent director of Janus Henderson may serve on the Janus Henderson Board for a maximum term of 10 years, except that directors who served on the Henderson board or the Janus board prior to the Merger may serve on the Janus Henderson Board for a maximum term of 15 years.

 

Director Compensation

 

Upon the closing of the Merger, Janus Henderson adopted updated fees for its non-executive directors, including the Chairman and the Deputy Chairman with effect from May 30, 2017.

 

The Chairman, Richard Gillingwater, will receive an annual cash retainer of $240,000 (made up of an annual cash retainer with a face value at the date of grant of $100,000, plus a further Chairman’s Cash Retainer of $140,000) payable in equal quarterly instalments, with an annual stock retainer with a face value at the date of grant of $100,000 awarded retrospectively, one year in arrears from beginning of the service period.

 

The Deputy Chairman, Glenn Schafer, will received an annual cash retainer of $225,000, (made up of an annual cash retainer of $100,000, plus a further Deputy Chairman’s Cash Retainer of $125,000)  payable in equal quarterly instalments, with an annual stock retainer with a face value at the date of grant of $100,000 awarded retrospectively as above.

 

With the exception of Tatsusaburo Yamamoto, who collects no fees, each other non-executive director (Eugene Flood Jr., Larry Kochard, Jeffrey Diermeier, Sarah Arkle, Angela Seymour-Jackson, Kevin Dolan and Kalpana Desai) will receive an annual cash retainer of $100,000, together with a Committee fee of $10,000, payable in equal quarterly instalments, in addition to an annual stock retainer of $100,000 awarded retrospectively as above.

 

In addition, the chair of the Audit Committee will receive an additional cash fee of $25,000, and the chairs of the Nominating/Corporate Governance Committee, the Compensation Committee and the Risk Committee will receive an additional cash fee of $15,000, in each case, payable in equal quarterly instalments.

 

Sarah Arkle and Angela Seymour-Jackson will also each receive an annual fee of £40,000 for membership on the board of Henderson Group Holdings Asset Management Limited, a subsidiary of Janus Henderson, payable in equal quarterly instalments.

 

The information required by Item 7.B of Form 20-F with respect to Glenn Schafer, Richard Weil, Jeffrey Diermeier, Eugene Flood Jr., Lawrence Kochard and Tatsusaburo Yamamoto is set forth in the section entitled “Item 13. Certain Relationships and Related Transactions, and Director Independence” included in Janus’s Amendment No. 1 to Form 10-K, filed with the SEC on March 10, 2017, incorporated by reference in the Registration Statement and incorporated herein by reference. The information required by Item 7.B of Form 20-F with respect to Richard Gillingwater, Andrew Formica, Sarah Arkle, Kalpana Desai, Kevin Dolan and Angela Seymour-Jackson is set forth in the section entitled  “Certain Relationships and Related Party Transactions Involving Henderson” in the Registration Statement and incorporated herein by reference.

 

Board Committees

 

Effective upon closing of the Merger, the Janus Henderson Board has four standing committees (the Audit Committee, the Nominating/Corporate Governance Committee, the Compensation Committee and the Risk Committee).

 

Effective upon closing of the Merger, the following directors were appointed to the various committees of the Board:

 

The Audit Committee of Janus Henderson is comprised of four directors: Jeffrey Diermeier, Glenn Schafer, Sarah Arkle and Kalpana Desai. Jeffrey Diermeier serves as the Chairman of the Audit Committee. Jeffrey Diermeier and Kalpana Desai qualify as “audit committee financial experts” as that term is defined by the applicable SEC rules and the NYSE corporate governance standards.

 

The Nominating/Corporate Governance Committee of Janus Henderson is comprised of ten directors: Jeffrey Diermeier, Eugene Flood Jr., Lawrence Kochard, Glenn Schafer, Tatsusaburo Yamamoto, Sarah Arkle, Kalpana Desai, Kevin Dolan, Richard Gillingwater and Angela Seymour-Jackson. Richard Gillingwater serves as the Chairman of the Nominating/Corporate Governance Committee.

 

The Compensation Committee of Janus Henderson is comprised of four directors: Lawrence Kochard, Glenn Schafer, Richard Gillingwater and Angela Seymour-Jackson. Lawrence Kochard serves as the Chairman of the Compensation Committee.

 

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The Risk Committee of Janus Henderson is comprised of four directors: Eugene Flood Jr., Jeffrey Diermeier, Sarah Arkle and Kevin Dolan. Sarah Arkle serves as the Chairman of the Risk Committee.

 

Executive Officers

 

Upon consummation of the Merger, a newly appointed executive committee reporting to the co-Chief Executives Richard Weil and Andrew Formica was appointed by the Board. The executive committee consists of 10 members as follows:

 

Name

 

Age

 

Position

Andrew Formica

 

46

 

Director and co-Chief Executive Officer

Richard Weil

 

53

 

Director and co-Chief Executive Officer

Roger Thompson

 

49

 

Chief Financial Officer

Enrique Chang

 

54

 

Global Chief Investment Officer

Phil Wagstaff

 

53

 

Global Head of Distribution

Bruce Koepfgen

 

64

 

Head of North America

Rob Adams

 

52

 

Head of Asia Pacific

Jennifer McPeek

 

47

 

Chief Operating and Strategy Officer

David Kowalski

 

60

 

Chief Risk Officer

Jacqui Irvine

 

45

 

Group General Counsel and Company Secretary

 

Set forth below are brief biographical descriptions of the members of the Janus Henderson executive committee.

 

Andrew Formica

 

Executive Director, Co-Chief Executive Officer.  Andrew Formica was appointed Executive Director and Chief Executive of Henderson in November 2008. He has been with Henderson and in the fund management industry since 1998. Mr. Formica has held various senior roles with Henderson and has been a member of Henderson’s executive committee since 2004. Prior to being appointed Chief Executive, he served as Joint Managing Director of the Listed Assets business (from September 2006) and as Head of Equities (from September 2004). In the early part of his career, he was an equity manager and analyst for Henderson. Mr. Formica was a director of TIAA Henderson Real Estate Limited from April 2014 to July 2015. Mr. Formica is the senior independent director of the board of The Investment Association and has served as a non-executive director of Hammerson plc since November 2015. Mr. Formica received a BEcon and MA in Economics from Macquarie University and a MBA from London Business School. He is a Fellow of the Institute of Actuaries in both the U.K. and Australia.

 

Richard Weil

 

Executive Director and Co-Chief Executive Officer.  Richard Weil served as Chief Executive Officer and a director of Janus beginning in February 2010. He also served as a member of Janus’s executive committee and a member of the board of directors of two Janus subsidiaries. Mr. Weil was Global head of Pacific Investment Management Company LLC (“PIMCO”) Advisory from February 2009 until joining Janus in February 2010. He was a member of the board of trustees for the PIMCO funds from February 2009 to February 2010 and PIMCO’s Chief Operating Officer from 2000 to 2009, during which time he led the development of PIMCO’s global business, founded PIMCO’s German operations, was responsible for PIMCO’s operations, technology, fund administration, finance, human resources, legal, compliance, and distribution functions, managed PIMCO’s non-U.S. offices, and served on PIMCO’s executive committee. Mr. Weil was general counsel for PIMCO Advisors LP from January 1999 to August 2000. He also worked in the hedge fund business of Bankers Trust Global Asset Management from 1994 to 1995 and was an attorney with the law firm Simpson Thacher & Bartlett LLP from September 1989 to 1994. Mr. Weil was a member of the Security Industry and Financial Markets Association’s (“SIFMA”) board of directors and chaired the SIFMA asset management industry group until 2010. Mr. Weil has a BA in Economics from Duke University and a JD from the University of Chicago Law School.

 

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Roger Thompson

 

Chief Financial Officer of Janus Henderson.  Roger Thompson was appointed an Executive Director and Chief Financial Officer of Henderson in June 2013. He joined Henderson from J.P. Morgan Asset Management where he served most recently as Global Chief Operating Officer and was previously Head of U.K. and, prior to that, International CFO. In his 19 year career at J.P. Morgan, Mr. Thompson held a broad range of roles and worked internationally, spending time in Tokyo, Singapore and Hong Kong. He has wide-ranging asset management experience, both in the U.K. and internationally. Mr. Thompson holds a BA in Accountancy and Economics from Exeter University and is a member of the Institute of Chartered Accountants in England and Wales.

 

Enrique Chang

 

Global Chief Investment Officer of Janus Henderson.  Enrique Chang served as President, Head of Investments of Janus beginning in April 2016. Mr. Chang has more than 28 years of financial industry experience. Upon joining Janus in September 2013, Mr. Chang was Chief Investment Officer, Equities and Asset Allocation. Mr. Chang has also served as a Portfolio Manager on the Janus Global Allocation strategies since 2015 and served as a member of the Janus executive committee beginning in 2013. From 2006 to 2013, Mr. Chang held various positions at American Century Investments, headquartered in Kansas City, MO, including serving as a director, chief investment officer and executive vice president from 2007 to 2013. Mr. Chang served as president and chief investment officer for Munder Capital Management from 2004 to 2006. Prior to that, he held a number of senior investment management positions at Vantage Global Advisor (from 1997 to 2000), J&W Seligman and Co. (1997) and General Reinsurance Corporation (from 1993 to 1997). Mr. Chang holds a Bachelor’s degree in Mathematics from Fairleigh Dickinson University and Masters’ degrees in Finance/Quantitative Analysis and in Statistics & Operations Research from New York University.

 

Phil Wagstaff

 

Global Head of Distribution of Janus Henderson.  Phil Wagstaff was appointed an Executive Director of Henderson in May 2016. He has over 28 years of experience in the fund management industry and was the Global Head of Distribution at Henderson beginning in 2012. Prior to this he was Global Head of Distribution at Gartmore Investment Management Limited from 2007 to 2011, and he has also held managing director roles in U.K. Retail with both New Star Asset Management (2005 - 2007) and M&G Investments (2000 - 2004). He was previously at Henderson from 1994 to 1997 as London Regional Sales Director.  Mr. Wagstaff holds a BA in Accounting from the University of Central Lancashire.

 

Bruce Koepfgen

 

Head of North America of Janus Henderson.  Bruce L. Koepfgen served as the President of Janus beginning in August 2013 and as a member of the Janus executive committee beginning in 2011. Mr. Koepfgen joined Janus in May 2011 as Executive Vice President and served as Janus Chief Financial Officer from July 2011 to August 2013. He has also served as President and Chief Executive Officer of the Janus Investment Fund and Janus Aspen Series Trusts (appointed in July 2014), and the Detroit Street Trust and Clayton Street Trust (appointed to both in February 2016). Mr. Koepfgen currently serves as a member of the board of directors of INTECH Investment Management LLC, and the board of managers of Perkins Investment Management LLC, both of which are subsidiaries of Janus. Prior to joining Janus, Mr. Koepfgen was Co-CEO of Allianz Global Investors Management Partners and CEO of Oppenheimer Capital from 2003 to 2009. From August 2010 through October 2011, Mr. Koepfgen served as a director of the Mortgage Guaranty Insurance Corporation and as a director of Thermo Fisher Scientific from May 2005 through September 2008. Mr. Koepfgen was previously a managing director of Salomon Brothers Inc. where he held various positions from 1976 to 1999, and he was president and principal of Koepfgen Company LLC, a management consulting organization, from 1999 to 2003. Mr. Koepfgen has a BS in business administration from the University of Michigan and an MBA from Northwestern University J.L. Kellogg School of Management.

 

Rob Adams

 

Head of Asia Pacific of Janus Henderson.  Rob Adams served as the Executive Chairman, Asia Pacific, of Henderson beginning in 2012 and as a member of the Henderson executive committee beginning in 2014. Mr. Adams has more than 25 year experience in fund management businesses, both in Australia and the U.K. Prior to joining Henderson in 2012, he was Chief Executive Officer of Challenger Funds Management, the fund management arm of Challenger Limited, an ASX 100 company. From 2000 to 2003, Mr. Adams served as the inaugural Chief Executive of First State Investments UK, having created that firm through the merger of Stewart Ivory and Colonial First State Investments (UK) in 2000. From

 

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1992 to 2000, he served as General Manager, Distribution and Marketing, for Colonial First State Investments Australia. Mr. Adams has a Bachelor of Business from the University of Technology, Sydney.

 

Jennifer McPeek

 

Chief Operating and Strategy Officer of Janus Henderson.  Jennifer McPeek served as the Chief Financial Officer of Janus beginning in August 2013 and as an Executive Vice President of Janus beginning in January 2014. Ms. McPeek served as a member of the Janus executive committee and oversaw Janus’s finance, corporate accounting, and tax departments. Prior to taking over as CFO of Janus, Ms. McPeek served as Senior Vice President of Corporate Finance and Treasurer of Janus overseeing the financial planning, investor relations, treasury, and corporate development functions of Janus. Prior to joining Janus in 2009, Ms. McPeek was senior vice president of strategic planning at ING Investment Management—Americas Region from 2005 to 2009. Ms. McPeek previously served as an Associate Principal at McKinsey and Company in their corporate strategy and finance practice from 1995 to 2001, and previously worked in the investment banking industry for Bank of Boston and Goldman, Sachs & Company from 1991 to 1995. Ms. McPeek holds a BA (magna cum laude) in Mathematics from Duke University and an MS degree in Financial Engineering from the Massachusetts Institute of Technology. Ms. McPeek holds the Chartered Financial Analyst designation.

 

David Kowalski

 

Chief Risk Officer of Janus Henderson.  David Kowalski served as Chief Compliance Officer of Janus and Janus Open-end Mutual Funds upon joining Janus in April of 2000. Mr. Kowalski was appointed as CCO to the Janus Exchange Traded Funds in February of 2016. In this role, Mr. Kowalski served as Senior Vice President responsible for compliance on behalf of Janus’s global organization and reported to the Janus Capital Group Audit Committee, the Trustees of the Janus Investment Fund and Janus Aspen Series, the Trustees of the Detroit Street Trust and Clayton Street Trust as well as Janus’s Chief Executive Officer. Mr. Kowalski was a member of the Operating, Ethics, Anti-Money Laundering, Corporate Disclosure, Data Privacy, Fund Disclosure, and Global Risk Committees, sat on the board of the Janus Foundation and was Janus’s Anti-Money Laundering Officer. Prior to joining Janus in 2000, Mr. Kowalski was Senior Vice President, Director—Mutual Fund Compliance for the Van Kampen Funds, a Morgan Stanley Dean Witter Company, from 1985 to 1999. He served in various capacities overseeing distributor, investment adviser and investment company compliance for 50 open-end funds, 39 closed-end funds and 3,000 unit investment trusts. Mr. Kowalski previously served as Assistant Vice President at Security Pacific Clearing and Services Corporation from 1981 to 1985 where he managed the Chicago clearing operations office. Mr. Kowalski attended the University of Illinois at Chicago from 1975-1979 and holds FINRA Financial and Operations, General Securities, General Securities Representative, Municipal Securities Principal, and Registered Options Principal licenses.

 

Jacqui Irvine

 

Group General Counsel and Company Secretary of Janus Henderson.  Jacqui Irvine served as General Counsel of Henderson beginning in 2011, as the Company Secretary of Henderson beginning in 2012 and as a member of the Henderson Executive Committee beginning in 2012. Ms. Irvine joined Henderson in 1996 and served as Director of Legal of Henderson from 2009 to 2011. She was responsible for the global legal and secretarial functions of Henderson. Ms. Irvine has a Bachelor of Arts from Wits University.

 

Information about the compensation of certain of the aforementioned individuals required to be disclosed under Items 5.02(c) and (d) of Form 8-K, is set forth in the section entitled “Interests of Janus Directors and Executive Officers in the Merger.”

 

The information required by Item 7.B of Form 20-F is set forth in (i) the section entitled “Item 13. Certain Relationships and Related Transactions, and Director Independence” included in Janus’s Amendment No. 1 to Form 10-K, filed with the SEC on March 10, 2017, incorporated by reference in the Registration Statement and incorporated herein by reference, and (ii) the section entitled  “Certain Relationships and Related Party Transactions Involving Henderson” in the Registration Statement and incorporated herein by reference.

 

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

Memorandum of Association

 

Effective upon closing of the Merger, Janus Henderson adopted a new Memorandum of Association, which is filed as

 

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Exhibit 3.1 hereto and incorporated by reference herein.

 

The new Memorandum of Association reflects the (i) changing of the company name from Henderson Group plc to Janus Henderson Group plc and (ii) increasing the authorized share capital of the Company from £274,363,847.00 to $720,000,000.

 

Articles  of Association

 

Effective upon closing of the Merger, Janus Henderson adopted a new Articles of Association, which is filed as Exhibit 3.2 hereto and incorporated by reference herein.

 

The new Articles of Association, among other things, (i) remove preemptive rights, (ii) remove the requirement to seek shareholder approval to issue shares, (iii) establish that the number of directors of Janus Henderson shall be not less than three nor more than 12, (iv) increase the quorum required for a general shareholder meeting from two holders to holders representing at least one-third in nominal value of the issued shares, (v) require directors of Janus Henderson to be re-elected at each annual shareholder meeting and eliminate the right of the chairman to cast a tie-breaking vote, (vi) establish that the record date for general shareholder meetings must be set no less than 10 days and no more than 60 days before the date fixed for the meeting, (vii) increase the cap on the remuneration of the non-executive directors of Janus Henderson to $3,000,000 per annum (or any higher amount approved by Janus Henderson shareholders), (viii) adopt the disclosure requirements for beneficial ownership of the Company’s ordinary shares set forth in Section 13(d) of the Securities Exchange Act of 1934, as amended, (ix) grant the Janus Henderson Board the authority to impose certain restrictions on shareholders in the event a disclosure notice pertaining to information on beneficial ownership is not complied with, (x) require shareholders to provide certain information and comply with certain timing requirements when exercising their right under Jersey companies law to require the Janus Henderson Board to call a shareholder meeting, (xi) remove certain provisions that reflect the UK Companies Act 2006, (xii) remove the ability to issue bearer shares, (xiii) permit the Janus Henderson Board to transfer amounts to the share premium account from any other account (other than the nominal capital account and capital redemption reserve) in connection with any employee share award or option schemes and (xiv) permit Janus Henderson’s ordinary shares to be traded via DTC.

 

Trading Symbol

 

Effective May 30, 2017, the Company’s ordinary shares trade under the ticker symbol “JHG” on the New York Stock Exchange with the new CUSIP number of G4474Y 214.

 

Item 5.05 Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics.

 

On May 25, 2017, the Henderson board of directors adopted, effective upon consummation of the Merger, a code of ethics (the “Code”) that applies to the Company’s Co-Chief Executive Officers, Chief Financial Officer, principal accounting officer, controller and to senior financial officers performing similar functions. The Code is filed as Exhibit 14.1 hereto and is incorporated into this Item 5.05 by reference. The Code is also available on the Company’s internet website at www.janushenderson.com.

 

Item 9.01. Financial Statements and Exhibits.

 

(a) Financial statements of businesses acquired.

 

The financial statements of Janus required by this item were previously filed and incorporated by reference in the

 

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Registration Statement.

 

(b) Pro forma financial information.

 

The pro forma financial information required by this item was previously filed and included in the Registration Statement.

 

(d) Exhibits.

 

Exhibit
Number

 

Description

 

 

 

1.1

 

Facility Agreement, dated 16 February 2017, for US$200,000,000 Revolving Credit Facility for Henderson Group plc arranged by Bank of America Merrill Lynch International Limited as Coordinator, Bookrunner and Mandated Lead Arranger with Bank of America Merrill Lynch International Limited as Facility Agent

2.1

 

Agreement and Plan of Merger, dated October 3, 2016, by and among Janus Capital Group Inc., Henderson Group plc and Horizon Orbit Corp.

3.1

 

Janus Henderson Memorandum of Association

3.2

 

Janus Henderson Articles of Association

4.1

 

Indenture dated as of November 6, 2001 (the “Base Indenture”), between Janus Capital Group Inc. and The Bank of New York Trust Company N.A. (as successor to The Chase Manhattan Bank), ( incorporated by reference from Exhibit 4.1 to Janus Capital Group Inc.’s Current Report on Form 8-K, dated November 6, 2001) (File No. 001-15253)

4.2

 

Third Supplemental Indenture to the Base Indenture, dated June 19, 2013, between Janus Capital Group Inc. and The Bank of New York Mellon Trust Company N.A., (incorporated by reference from Exhibit 4.5.4 to Janus Capital Group Inc.’s Annual Report on Form 10-K for the year ended December 31, 2013) (File No. 001-15253)

4.3

 

Fourth Supplemental Indenture to the Base Indenture, dated as of May 30, 2017, among Janus Capital Group Inc., Henderson Group plc and The Bank of New York Mellon Trust Company N.A.

4.4

 

Officers’ Certificate pursuant to the Base Indenture establishing the terms of the Janus Convertible Notes (incorporated by reference from Exhibit 4.10.1 to Janus Capital Group Inc.’s Annual Report on Form 10-K for the year ended December 31, 2013) (File No. 001-15253)

4.5

 

Fifth Supplemental Indenture to the Base Indenture, dated as of May 30, 2017, among Janus Capital Group Inc., Henderson Group plc and The Bank of New York Mellon Trust Company N.A.

4.6

 

Form of Janus Convertible Notes (incorporated by reference from Exhibit 4.10.1 to Janus Capital Group Inc.’s Annual Report on Form 10-K for the year ended December 31, 2013) (File No. 001-15253)

4.7

 

Form of Global Notes for the Janus 2025 Notes (incorporated by reference from Exhibit 4.2 to Janus Capital Group Inc.’s Current Report on Form 8-K, dated July 31, 2015) (File No. 001-15253)

14.1

 

Janus Henderson Group plc Officer Code of Ethics for Chief Executive Officer and Senior Financial Officers

 

10



 

SIGNATURES

 

Pursuant to the requirements of the Exchange Act, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

Janus Henderson Group plc

 

 

 

 

 

 

Date: May 30, 2017

By:

/s/ Andrew Formica

 

Name:

Andrew Formica

 

Title:

Co-Chief Executive Officer

 

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EXHIBIT INDEX

 

Exhibit
Number

 

Description

 

 

 

1.1

 

Facility Agreement, dated 16 February 2017, for US$200,000,000 Revolving Credit Facility for Henderson Group plc arranged by Bank of America Merrill Lynch International Limited as Coordinator, Bookrunner and Mandated Lead Arranger with Bank of America Merrill Lynch International Limited as Facility Agent

2.1

 

Agreement and Plan of Merger, dated October 3, 2016, by and among Janus Capital Group Inc., Henderson Group plc and Horizon Orbit Corp.

3.1

 

Janus Henderson Memorandum of Association

3.2

 

Janus Henderson Articles of Association

4.1

 

Indenture dated as of November 6, 2001 (the “Base Indenture”), between Janus Capital Group Inc. and The Bank of New York Trust Company N.A. (as successor to The Chase Manhattan Bank), ( incorporated by reference from Exhibit 4.1 to Janus Capital Group Inc.’s Current Report on Form 8-K, dated November 6, 2001) (File No. 001-15253)

4.2

 

Third Supplemental Indenture to the Base Indenture, dated June 19, 2013, between Janus Capital Group Inc. and The Bank of New York Mellon Trust Company N.A., (incorporated by reference from Exhibit 4.5.4 to Janus Capital Group Inc.’s Annual Report on Form 10-K for the year ended December 31, 2013) (File No. 001-15253)

4.3

 

Fourth Supplemental Indenture to the Base Indenture, dated as of May 30, 2017, among Janus Capital Group Inc., Henderson Group plc and The Bank of New York Mellon Trust Company N.A.

4.4

 

Officers’ Certificate pursuant to the Base Indenture establishing the terms of the Janus Convertible Notes (incorporated by reference from Exhibit 4.10.1 to Janus Capital Group Inc.’s Annual Report on Form 10-K for the year ended December 31, 2013) (File No. 001-15253)

4.5

 

Fifth Supplemental Indenture to the Base Indenture, dated as of May 30, 2017, among Janus Capital Group Inc., Henderson Group plc and The Bank of New York Mellon Trust Company N.A.

4.6

 

Form of Janus Convertible Notes (incorporated by reference from Exhibit 4.10.1 to Janus Capital Group Inc.’s Annual Report on Form 10-K for the year ended December 31, 2013) (File No. 001-15253)

4.7

 

Form of Global Notes for the Janus 2025 Notes (incorporated by reference from Exhibit 4.2 to Janus Capital Group Inc.’s Current Report on Form 8-K, dated July 31, 2015) (File No. 001-15253)

14.1

 

Janus Henderson Group plc Officer Code of Ethics for Chief Executive Officer and Senior Financial Officers

 

12


(Back To Top)

Section 2: EX-1.1 (EX-1.1)

Exhibit 1.1

 

EXECUTION VERSION

 

FACILITY AGREEMENT

 

DATED 16 FEBRUARY 2017

 

US$200,000,000

 

REVOLVING CREDIT FACILITY

 

for

 

HENDERSON GROUP PLC

 

arranged by

 

BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED

as Coordinator, Bookrunner and Mandated Lead Arranger

 

with

 

BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED

as Facility Agent

 

 

Allen & Overy LLP

 



 

CONTENTS

 

Clause

 

Page

 

 

 

1.

Definitions and interpretation

1

2.

The Facility

20

3.

Purpose

25

4.

Conditions of Utilisation

25

5.

Utilisation

25

6.

Optional Currencies

26

7.

Repayment

28

8.

Prepayment and cancellation

29

9.

Interest

33

10.

Interest Periods

35

11.

Changes to the calculation of interest

35

12.

Fees

37

13.

Tax gross-up and indemnities

39

14.

Increased Costs

47

15.

Other indemnities

49

16.

Mitigation by the Lenders

50

17.

Costs and expenses

51

18.

Guarantee and indemnity

51

19.

Representations

56

20.

Information undertakings

60

21.

Financial covenants

63

22.

General undertakings

66

23.

Events of Default

71

24.

Changes to the Lenders

74

25.

Changes to the Obligors

79

26.

Role of the Administrative Parties and the Reference Banks

81

27.

Conduct of business by the Finance Parties

91

28.

Sharing among the Finance Parties

91

29.

Payment mechanics

93

30.

Set-off

97

31.

Notices

97

32.

Calculations and certificates

99

33.

Partial invalidity

100

34.

Remedies and waivers

100

35.

Amendments and waivers

100

36.

Confidential Information

103

37.

Confidentiality of Funding Rates and Reference Bank quotations

106

38.

Counterparts

108

39.

Governing law

108

40.

Waiver of trial by jury

108

41.

Enforcement

108

42.

USA Patriot Act

109

 



 

Schedule

 

Page

 

 

 

1.

Original Parties

110

2.

Conditions precedent

111

 

Part 1

Conditions Precedent to initial utilisation

111

 

Part 2

Conditions precedent required to be delivered by an Additional Guarantor

113

3.

Form of Utilisation Request

115

4.

Form of Accordion Increase Confirmation

116

5.

Form of Transfer Certificate

119

6.

Form of Assignment Agreement

122

7.

Form of Accession Letter

125

8.

Form of Resignation Letter

126

9.

Form of Increase Confirmation

127

10.

Form of Compliance Certificate

130

11.

Existing Security

131

12.

Timetables

132

13.

Other benchmarks

134

 



 

THIS AGREEMENT is dated 16 FEBRUARY 2017 and made

 

BETWEEN:

 

(1)                                 HENDERSON GROUP PLC (to be renamed Janus Henderson Group plc following the Merger Completion Date) (registered number 101484) (the Company);

 

(2)                                 JANUS CAPITAL GROUP INC. (registered number 2850271) (the Original Guarantor);

 

(3)                                 BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED as coordinator, bookrunner and mandated lead arranger and CITIGROUP GLOBAL MARKETS LIMITED as bookrunner and mandated lead arranger (together, the Bookrunners and Mandated Lead Arrangers);

 

(4)                                 BNP PARIBAS LONDON BRANCH, SUMITOMO MITSUI BANKING CORPORATION EUROPE LIMITED and WELLS FARGO BANK, NATIONAL ASSOCIATION as mandated lead arrangers (the Mandated Lead Arrangers);

 

(5)                                 STATE STREET BANK AND TRUST COMPANY as lead arranger (the Lead Arranger)

 

(6)                                 THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Parties) as original lenders (in this capacity, the Original Lenders); and

 

(7)                                 BANK OF AMERICA MERRILL LYNCH INTERNATIONAL LIMITED as facility agent (in this capacity, the Facility Agent).

 

IT IS AGREED as follows:

 

1.                                      DEFINITIONS AND INTERPRETATION

 

1.1                               Definitions

 

In this Agreement:

 

2025 Senior Notes means the USD300,000,000 senior notes due in 2025 issued by the Original Guarantor.

 

Accession Letter means a document substantially in the form set out in Schedule 7 (Form of Accession Letter), with any amendments the Facility Agent and the Company may agree.

 

Accordion Increase has the meaning given to that term in Clause 2.4 (Accordion Increase in Commitments).

 

Accordion Increase Amount has the meaning given to that term in Clause 2.4 (Accordion Increase in Commitments).

 

Accordion Increase Confirmation means an agreement substantially in the form set out in Schedule 4 (Form of Accordion Increase Confirmation) or any other form agreed between the Company, the Facility Agent and the Accordion Lender.

 

Accordion Increase Date has the meaning given to that term in Clause 2.4 (Accordion Increase in Commitments).

 

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Accordion Lender has the meaning given to that term in Clause 2.4 (Accordion Increase in Commitments).

 

Accordion Request has the meaning given to that term in Clause 2.4 (Accordion Increase in Commitments).

 

Additional Guarantor means a person which becomes a Guarantor in accordance with Clause 25 (Changes to the Obligors).

 

Administrative Party means the Arrangers or the Facility Agent.

 

Affiliate means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

 

Agent’s Spot Rate of Exchange means Bloomberg’s (at http://www.bloomberg.com/markets/ currencies/major) or, if different, the Facility Agent’s spot rate of exchange for the purchase of the relevant currency with US Dollars in the London foreign exchange market at or about 11:00 a.m. on a particular day.

 

Anti-Corruption Laws means all laws, rules and regulations of any jurisdiction applicable to the Company or its Subsidiaries from time to time directly regulating bribery or corruption.

 

Arrangers means the Bookrunners and Mandated Lead Arrangers, the Mandated Lead Arrangers and the Lead Arranger.

 

Assignment Agreement means an agreement substantially in the form set out in Schedule 6 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee.

 

AUD means Australian Dollars.

 

Authorisation means an authorisation, consent, approval, resolution, permit, licence, exemption, filing, notarisation or registration.

 

Availability Period means the period from and including the Merger Completion Date to and including the date falling one month before the Termination Date.

 

Available Commitment means a Lender’s Commitment minus:

 

(a)                                 the Base Currency Amount of its participation in any outstanding Loans; and

 

(b)                                 in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date,

 

other than that Lender’s participation in any Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.

 

Available Facility means the aggregate for the time being of each Lender’s Available Commitment.

 

Base Currency means USD.

 

Base Currency Amount means, in relation to a Loan:

 

(a)                                 the amount specified in the Utilisation Request delivered by the Company for that Loan; or

 

2



 

(b)                                 if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Facility Agent receives the Utilisation Request,

 

in each case, adjusted to reflect any repayment, prepayment, consolidation or division of the Loan.

 

Benchmark Rate means, in relation to any Loan in AUD:

 

(a)                                 the applicable Screen Rate as of the Specified Time for the currency of that Loan for a period equal to the Interest Period of that Loan; or

 

(b)                                 as otherwise determined pursuant to Clause 11.1 (Unavailability of Screen Rate),

 

and if, in either case, that rate is less than zero, the Benchmark Rate will be deemed to be zero.

 

Break Costs means the amount (if any) by which:

 

(a)                                 the interest (excluding Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

 

exceeds:

 

(b)                                 the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

 

Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Boston and New York and:

 

(a)                                 (in relation to any date for payment or purchase of, or the fixing of an interest rate in relation to, a currency other than euro or AUD) the principal financial centre of the country of that currency;

 

(b)                                 (in relation to any date for payment or purchase of, or the fixing of an interest rate in relation to, euro) any TARGET Day; or

 

(c)                                  (in relation to any date for payment or purchase of, or the fixing of an interest rate in relation to, AUD) any day specified as such in respect of that currency in Schedule 13 (Other benchmarks).

 

Code means the U.S. Internal Revenue Code of 1986.

 

Commitment means:

 

(a)                                 in relation to an Original Lender, the amount set opposite its name in Schedule 1 (Original Parties) under the heading Commitment and the amount of any other Commitment it acquires under this Agreement; and

 

(b)                                 in relation to any other Lender, the amount of any Commitment it acquires under this Agreement,

 

3



 

to the extent not cancelled, reduced or transferred by it under this Agreement or assumed by it in accordance with Clause 2.3 (Increase) or Clause 2.4 (Accordion Increase in Commitments).

 

Compliance Certificate means a certificate substantially in the form set out in Schedule 10 (Form of Compliance Certificate), with any amendments which the Facility Agent and the Company may agree.

 

Confidential Information means all information relating to the Company, any Guarantor, the Group, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:

 

(a)                                 any member of the Group or any of its advisers; or

 

(b)                                 another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

 

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

 

(i)                                     information that:

 

(A)                               is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 36 (Confidential Information);

 

(B)                               is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or

 

(C)                               is known by that Finance Party before the date the information is disclosed to it in accordance with paragraph (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

 

(ii)                                  any Funding Rate or Reference Bank Quotation.

 

Confidentiality Undertaking means, at any time, a confidentiality undertaking substantially in the then current recommended form of the Loan Market Association or in any other form agreed between the Company and the Facility Agent.

 

Consolidated Structured Entities means where a member of the Group has invested seed capital and, under GAAP, the funds have been consolidated.

 

CTA means the Corporation Tax Act 2009.

 

Default means:

 

(a)                                 an Event of Default; or

 

4



 

(b)                                 an event or circumstance specified in Clause 23 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of them) be an Event of Default.

 

Defaulting Lender means any Lender:

 

(a)                                 which has failed to make its share in a Loan available or has given notice to the Facility Agent or the Company (which has notified the Facility Agent) that it will not make available its share in any Loan by the relevant Utilisation Date in accordance with this Agreement; or

 

(b)                                 which has rescinded or repudiated a Finance Document;

 

unless, in the case of paragraph (a) above:

 

(i)                                     its failure to pay is caused by:

 

(A)                               administrative or technical error; or

 

(B)                               a Disruption Event, and

 

payment is made within five Business Days of its due date; or

 

(ii)                                  the Lender is disputing in good faith whether it is contractually obliged to make the relevant payment.

 

Disruption Event means either or both of:

 

(a)                                 a material disruption to the payment or communications systems or to the financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out), provided that the 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,

 

and which (in either case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

 

Employee Plan means an employee pension benefit plan within the meaning of Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which an Obligor or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4062 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

ERISA means, at any date, the United States Employee Retirement Income Security Act of 1974 (or any successor legislation thereto) as amended from time to time, and the regulations promulgated and rulings issued thereunder, all as the same may be in effect at such date.

 

5



 

ERISA Affiliate means any person that for purposes of Title I and Title IV of ERISA and Section 412 of the Code would be deemed at any relevant time to be a single employer with an Obligor, pursuant to Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.

 

ERISA Event means

 

(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 of a notice of intent to terminate any Employee Plan, if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, or the filing under Section 4041(c) of ERISA of a notice of intent to terminate any Employee Plan or the termination of any Employee Plan under Section 4041(c) of ERISA;

 

(c)                                  the institution of proceedings under Section 4042 of ERISA by the PBGC for the termination of, or the appointment of a trustee to administer, any Employee Plan;

 

(d)                                 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;

 

(e)                                  the failure to make a required contribution under Section 412 or 430 of the Code to any Employee Plan that would result in the imposition of an encumbrance or at any time prior to date hereof, a 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 or Multiemployer Plan;

 

(f)                                   an engagement in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA with respect to any Employee Plan;

 

(g)                                  the complete or partial withdrawal of any Obligor or any ERISA Affiliate from a Multiemployer Plan;

 

(h)                                 an Obligor or an ERISA Affiliate incurring any liability under Title IV of ERISA with respect to any Employee Plan (other than premiums due and not delinquent under Section 4007 of ERISA); and

 

(i)                                     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).

 

EURIBOR means, in relation to any Loan in euro:

 

(a)                                 the applicable Screen Rate as of the Specified Time for euro for a period equal to the Interest Period of that Loan; or

 

(b)                                 as otherwise determined pursuant to Clause 11.1 (Unavailability of Screen Rate),

 

and if, in either case, that rate is less than zero, EURIBOR will be deemed to be zero.

 

euro, EUR and mean the single currency of the Participating Member States.

 

Event of Default means any event or circumstance specified as such in Clause 23 (Events of Default).

 

6



 

Executive Order means Executive Order No. 13224 on Terrorist Financings — Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism issued on 23 September 2001.

 

Facility means the revolving credit facility made available under this Agreement as described in Clause 2 (The Facility).

 

Facility Office means the office or offices notified by a Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.

 

Fallback Interest Period means one week or, if the Loan is in AUD, the period specified as such in respect of that currency in Schedule 13 (Other benchmarks).

 

FATCA means:

 

(a)                                 sections 1471 to 1474 of the Code or any associated regulations;

 

(b)                                 any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the U.S. and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

 

(c)                                  any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraph (a) or (b) above with the U.S. Internal Revenue Service, the U.S. government or any governmental or taxation authority in any other jurisdiction.

 

FATCA Application Date means:

 

(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 U.S.), 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 U.S.), 1 January 2019; or

 

(c)                                  in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraph (a) or (b) above, 1 January 2019,

 

or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.

 

FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.

 

FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.

 

Fee Letter means any letter entered into by reference to this Agreement between one or more Administrative Parties and the Company setting out the amount of any fees referred to in this Agreement.

 

7



 

Finance Document means:

 

(a)                                 this Agreement;

 

(b)                                 a Fee Letter;

 

(c)                                  an Accession Letter;

 

(d)                                 a Resignation Letter; and

 

(e)                                  any other document designated as such by the Facility Agent and the Company.

 

Finance Lease means any lease, hire purchase contract or other agreement which would, in accordance with GAAP in force on the date of this Agreement, be treated as a balance sheet liability.

 

Finance Party means a Lender or an Administrative Party.

 

Financial Indebtedness means any indebtedness for or in respect of:

 

(a)                                 moneys borrowed;

 

(b)                                 any acceptance under any acceptance credit facility (including any dematerialised equivalent);

 

(c)                                  any note purchase facility or the issue of bonds (but not Trade Instruments), notes, debentures, loan stock or any similar instrument;

 

(d)                                 any Finance Lease;

 

(e)                                  receivables sold or discounted (other than any receivables to the extent they are sold or discounted on a non-recourse basis);

 

(f)                                   for the purposes of Clause 23.6 (Cross-default) only, any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) will be taken into account);

 

(g)                                  any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution (other than in respect of any performance bonds or advance payment bonds issued in respect of obligations of any member of the Group arising in the ordinary course of trading);

 

(h)                                 any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing; or

 

(i)                                     any guarantee, indemnity or similar assurance against financial loss of any person in respect of any item referred to in paragraphs (a) to (h) above,

 

but excluding any (i) indebtedness owing by a member of the Group to another member of the Group; and (ii) indebtedness owing by any members of the Group which are Consolidated Structured Entities.

 

Fitch means Fitch Ratings Limited or any successor to its ratings business.

 

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Funding Rate means any individual rate notified by a Lender to the Facility Agent pursuant to paragraph (a)(ii) of Clause 11.4 (Cost of funds).

 

GAAP means:

 

(a)                                 in relation to the Original Financial Statements:

 

(i)                                     in respect of the Company, the generally accepted accounting principles in the UK., including IFRS; and

 

(ii)                                  in respect of the Original Guarantor, the generally accepted accounting principles in the U.S.; and

 

(b)                                 in relation to the financial statements delivered pursuant to Clause 20.1 (Financial Statements), the generally accepted accounting principles in the U.S..

 

Group means the Company and its Subsidiaries for the time being.

 

Guarantor means an Original Guarantor or an Additional Guarantor which, in each case, has not ceased to be a Guarantor in accordance with Clause 25 (Changes to the Obligors).

 

Historic Screen Rate means, in relation to any Loan, the most recent applicable Screen Rate for the currency of that Loan and for a period equal in length to the Interest Period of that Loan and which is as of a day which is no more than three days before the Quotation Day.

 

Holding Company means, in relation to a person, any other person in respect of which it is a Subsidiary

 

IFRS means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.

 

Impaired Agent means the Facility Agent at any time when:

 

(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)                                 it rescinds or repudiates a Finance Document,

 

(c)                                  (if the Facility Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of Defaulting Lender; or

 

(d)                                 an Insolvency Event has occurred and is continuing with respect to the Facility Agent;

 

unless, in the case of paragraph (a) above:

 

(i)                                     its failure to pay is caused by:

 

(A)                               administrative or technical error; or

 

(B)                               a Disruption Event, and

 

payment is made within five Business Days of its due date; or

 

(ii)                                  the Facility Agent is disputing in good faith whether it is contractually obliged to make the relevant payment.

 

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Increase Confirmation means a confirmation substantially in the form set out in Schedule 9 (Form of Increase Confirmation) or any other form agreed between the Company and the Facility Agent.

 

Increased Costs has the meaning given to it in Clause 14 (Increased Costs).

 

Increase Lender has the meaning given to it in Clause 2.3 (Increase).

 

Information Memorandum means the information memorandum prepared on behalf of, and approved by, the Company in connection with this Agreement.

 

Insolvency Event in relation to a Finance Party means that the Finance Party:

 

(a)                                 is dissolved (other than as a result of 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 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 bankruptcy or insolvency law or other similar law affecting creditors’ rights, 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 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 presented against it, that proceeding or petition is instituted or presented by a person or an 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 30 days of its institution or presentation;

 

(f)                                   has a resolution passed for its winding-up, official management or liquidation (other than as a result of a consolidation, amalgamation or merger);

 

(g)                                  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 its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);

 

(h)                                 has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and that secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days of it;

 

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(i)                                     causes or is subject to any event which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) (inclusive) above; or

 

(j)                                    takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence, in any of the acts referred to above.

 

Interest Period means each period determined under this Agreement by reference to which interest on a Loan or an Unpaid Sum is calculated.

 

Interpolated Historic Screen Rate means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

 

(a)                                 the most recent applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

 

(b)                                 the most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

 

each for the currency of that Loan and each of which is as of a day which is no more than three days before the Quotation Day.

 

Interpolated Screen Rate means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

 

(a)                                 the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

 

(b)                                 the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

 

each as of the Specified Time for the currency of that Loan.

 

ITA means the Income Tax Act 2007.

 

Lender means:

 

(a)                                 an Original Lender; or

 

(b)                                 any bank or financial institution which has become a Lender in accordance with Clause 2.3 (Increase), Clause 2.4 (Accordion Increase in Commitments) or a Party in accordance with Clause 24 (Changes to the Lenders),

 

which, in each case, has not ceased to be a Party in accordance with the terms of this Agreement.

 

LIBOR means, in relation to any Loan in any currency other than euro and AUD:

 

(a)                                 the applicable Screen Rate as of the Specified Time for the currency of that Loan for a period equal to the Interest Period of that Loan; or

 

(b)                                 as otherwise determined pursuant to Clause 11.1 (Unavailability of Screen Rate),

 

and if, in either case, that rate is less than zero, LIBOR will be deemed to be zero.

 

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Loan means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan.

 

Majority Lenders means, at any time, a Lender or Lenders:

 

(a)                                 whose participation in the outstanding Loans and whose Available Commitments then aggregate 662/3% or more of the aggregate of all the outstanding Loans and the Available Commitments of all the Lenders;

 

(b)                                 if there is no Loan then outstanding, whose Commitments then aggregate 662/3% or more of the Total Commitments; or

 

(c)                                  if there is no Loan then outstanding and the Total Commitments have been reduced to zero, whose Commitments aggregated 662/3% or more of the Total Commitments immediately before the reduction.

 

Margin means the percentage rate per annum calculated in accordance with Clause 9.3 (Margin adjustments).

 

Material Adverse Effect means a material adverse effect on:

 

(a)                                 the business, assets or financial condition of the Group as a whole;

 

(b)                                 the ability of the Group as a whole to perform its payment and financial covenant obligations under any Finance Document; or

 

(c)                                  the validity or enforceability of any Finance Document.

 

Material Subsidiary means, at any time, a Subsidiary of the Company if:

 

(a)                                 the revenue or net assets (excluding any intra-Group transactions or balances) of that Subsidiary then represent 10% or more of the total revenue or total net assets (excluding any intra-Group transactions or balances) of the Group; or

 

(b)                                 the Unrestricted Cash of that Subsidiary then equals or exceeds 5% of the total Unrestricted Cash of the Group.

 

For this purpose:

 

(c)                                  subject to paragraph (d) below:

 

(i)                                     the contribution of a Subsidiary of the Company will be determined from its financial statements which were consolidated into the latest audited consolidated financial statements of the Company; and

 

(ii)                                  the financial condition of the Group will be determined from the latest audited consolidated financial statements of the Company;

 

(d)                                 if a Subsidiary of the Company becomes a member of the Group after the date on which the latest audited consolidated financial statements of the Company were prepared:

 

(i)                                     the contribution of the Subsidiary will be determined from its latest financial statements; and

 

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(ii)                                  the financial condition of the Group will be determined from the latest audited consolidated financial statements of the Company but adjusted to take into account any subsequent acquisition or disposal of a business or a company (including that Subsidiary);

 

(e)                                  if a Material Subsidiary disposes of all or substantially all of its assets to another member of the Group, it will immediately cease to be a Material Subsidiary (provided it no longer satisfies the definition of Material Subsidiary as a result of such disposal) and the other member of the Group (if it is not the Company or already a Material Subsidiary) will immediately become a Material Subsidiary (provided it satisfies the definition of Material Subsidiary as a result of such disposal);

 

(f)                                   a Subsidiary of the Company (if it is not already a Material Subsidiary) will become a Material Subsidiary on completion of any other intra-Group transfer or reorganisation if it would have been a Material Subsidiary had the intra-Group transfer or reorganisation occurred on the date of the latest audited consolidated financial statements of the Company; and

 

(g)                                  except as specifically mentioned in paragraph (e) above, a member of the Group will remain a Material Subsidiary until the next audited consolidated financial statements of the Company show otherwise under paragraph (c) above.

 

If there is a dispute as to whether or not a member of the Group is a Material Subsidiary, a certificate of the Company’s auditors is, in the absence of manifest error, conclusive.

 

Merger means the proposed merger of Horizon Orbit Corp. with and into Janus Capital Group Inc. in accordance with the provisions of the Merger Agreement.

 

Merger Agreement means the agreement and plan of merger dated 3 October 2016 and made between the Company, Horizon Orbit Corp. and Janus Capital Group Inc. in relation to the Merger.

 

Merger Completion Date means the date on which the closing of the Merger occurs.

 

Month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

 

(a)                                 other than where paragraph (b) below applies:

 

(i)                                   (subject to paragraph (iii) below) if the numerically corresponding day is not a Business Day, that period will end on the next Business Day in the calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

 

(ii)                                if there is no numerically corresponding day in the calendar month in which that period is to end, that period will end on the last Business Day in that calendar month; and

 

(iii)                             if an Interest Period begins on the last Business Day of a calendar month, that Interest Period will end on the last Business Day in the calendar month in which that Interest Period is to end; and

 

(b)                                 in relation to an Interest Period for any Loan (or any other period for the accrual of commission or fees) in AUD for which there are rules specified as Business Day

 

13



 

Conventions in respect of that currency in Schedule 13 (Other benchmarks), those rules will apply.

 

The rules in paragraph (a) above will only apply to the last Month of any period.

 

Moody’s means Moody’s Investors Service Limited or any successor to its ratings business.

 

Multiemployer Plan means a “multiemployer plan” (as defined in Section 3(37) of ERISA) that is subject to Title IV of ERISA contributed to for any employees of an Obligor or any ERISA Affiliate.

 

New Lender has the meaning given to it in Clause 24 (Changes to the Lenders).

 

Obligor means the Company or a Guarantor.

 

Optional Currency means a currency (other than the Base Currency) which satisfies the conditions in paragraph (a) of Clause 6.2 (Conditions relating to Optional Currencies).

 

Original Financial Statements means:

 

(a)                                 in relation to the Company, the audited consolidated financial statements of the Group for the financial year ended 31 December 2015; and

 

(b)                                 in relation to the Original Guarantor, its audited financial statements for its financial year ended 31 December 2015.

 

Original Obligor means the Company or the Original Guarantor.

 

Participating Member State means any member state of the European Union that has the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

 

Party means a party to this Agreement.

 

Patriot Act means the USA Patriot Act (Title III of Pub. L. 107-56, signed into law on 26 October 2001).

 

PBGC means the US Pension Benefit Guaranty Corporation, or any entity succeeding to all or any of its functions under ERISA.

 

Pro Rata Share means, at any time:

 

(a)                                 for the purpose of determining a Lender’s participation in a Utilisation, the proportion which its Available Commitment then bears to the Available Facility; and

 

(b)                                 for any other purpose:

 

(i)                                   the proportion which a Lender’s participation in the Loans then bears to all the Loans;

 

(ii)                                if there is no Loan then outstanding, the proportion which its Commitment then bears to the Total Commitments; or

 

(iii)                             if there is no Loan then outstanding and the Total Commitments have been reduced to zero, the proportion which its Commitment bore to the Total Commitments immediately before the reduction.

 

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Qualifying Lender has the meaning given to it in Clause 13 (Tax gross-up and indemnities).

 

Quotation Day means, in relation to any period for which an interest rate is to be determined:

 

(a)                                 (i)                                     (if the currency is sterling) the first day of that period;

 

(i)                                     (if the currency is euro) two TARGET Days before the first day of that period; or

 

(ii)                                  (for any other currency other than AUD) two Business Days before the first day of that period,

 

unless market practice differs in the Relevant Market for that currency, in which case the Quotation Day for that currency will be determined by the Facility Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days); or

 

(b)                                 (if the currency is AUD) the day specified as such in respect of that currency in Schedule 13 (Other benchmarks).

 

Reference Bank Quotation means any quotation supplied to the Facility Agent by a Reference Bank.

 

Reference Bank Rate means:

 

(a)                                 the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks:

 

(i)                                   in relation to LIBOR, as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in the relevant currency and for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or

 

(ii)                                in relation to EURIBOR, as the rate at which the relevant Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in euro within the Participating Member States for the relevant period,

 

or, in each case, if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; and

 

(b)                                 in relation to a Benchmark Rate, the rate specified as such in respect of the relevant currency in Schedule 13 (Other benchmarks).

 

Reference Banks means the principal London offices of any three banks appointed by the Facility Agent in consultation with the Company from time to time, provided that each such bank confirms to the Facility Agent its willingness to act as Reference Bank.

 

Related Fund in relation to a fund (the first fund), means:

 

(a)                                 a fund which is managed or advised by the same investment manager or investment adviser as the first fund; or

 

(b)                                 if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

 

15



 

Relevant Long-term Credit Rating has the meaning given to it in paragraph (c) of Clause 9.3 (Margin adjustments).

 

Relevant Market means, in relation to euro, the European interbank market, in relation to AUD, the market specified as such in respect of that currency in Schedule 13 (Other benchmarks) and, in relation to any other currency, the London interbank market.

 

Repeating Representations means each of the representations and warranties set out in Clauses 19.2 (Status) to 19.7 (Governing law and enforcement), paragraph (a) of Clause 19.10 (No default), paragraph (c) of Clause 19.11 (No misleading information), paragraph (a) of Clause 19.12 (Financial statements) and Clauses 19.15 (Anti-Corruption laws, sanctions and Patriot Act) to 19.17 (Compliance with U.S. regulations).

 

Representative means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

 

Resignation Letter means a resignation letter substantially in the form set out in Schedule 8 (Form of Resignation Letter), with any amendments the Facility Agent and the Company may agree.

 

Rollover Loan means one or more Loans:

 

(a)                                 made or to be made on the same day that a maturing Loan is due to be repaid;

 

(b)                                 the aggregate amount of which is equal to or less than the amount of the maturing Loan;

 

(c)                                  in the same currency as the maturing Loan (unless it arose as a result of the operation of Clause 6.3 (Unavailability of a currency for a Loan)); and

 

(d)                                 made or to be made for the purpose of refinancing the maturing Loan.

 

S&P means S&P Global Ratings, a division of S&P Global Inc. or any successor to its ratings business.

 

Sanctions shall mean the economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. Government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.

 

Sanctioned Person means any person who (a) is named on the list of Specially Designated Nationals or Blocked Persons maintained by the U.S. Department of the Treasury’s Office of Foreign Asset Controls and/or any other similar lists maintained by the U.S. Department of the Treasury’s Office of Foreign Asset Controls pursuant to authorising statute, executive order or regulation, (b) is named on a list maintained by the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom, (c) is a person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of the Executive Order or any related legislation or any other similar executive order or (d), (i) is an agency of the government of a country, (ii) an organisation controlled by a country or (iii) a person resident in, located within, or operating from a country that is subject to a general export, import, financial or investment embargo under Sanctions, as such programme may be applicable to such agency, organisation or person.

 

Screen Rate means:

 

16



 

(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 (before any correction, recalculation or republication by the administrator) on page LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and

 

(b)                                 in relation to EURIBOR, the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate); and

 

(c)                                  in relation to a Benchmark Rate, the rate specified as such in respect of the relevant currency in Schedule 13 (Other benchmarks),

 

or, in each case, on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters.  If such page or service ceases to be available, the Facility Agent may specify another page or service displaying the relevant rate subject to the agreement of the Majority Lenders and the Obligors.

 

Security Interest means a mortgage, charge, pledge, lien, assignment by way of security, hypothecation or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

 

Senior Convertible Notes means the USD116,602,000 senior notes due in 2018 issued by the Original Guarantor.

 

Separate Loan has the meaning given to that term in Clause 7 (Repayment).

 

Specified Time means a day or time determined in accordance with Schedule 12 (Timetables).

 

Subsidiary means an entity of which a person has direct or indirect control or owns directly or indirectly more than 50% of the voting capital or similar right of ownership and control for this purpose means the power to direct the management and the policies of the entity whether through the ownership of voting capital, by contract or otherwise.

 

TARGET2 means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.

 

TARGET Day means any day on which TARGET2 is open for the settlement of payments in euro.

 

Tax means any tax, levy, impost, duty or other charge or 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 them).

 

Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.

 

Tax Payment means either an increase in a payment made by an Obligor to a Finance Party under Clause 13.2 (Tax gross-up) or a payment under Clause 13.3 (Tax indemnity).

 

Termination Date means, subject to Clause 2.5 (Extension), the date falling five years after the date of this Agreement.

 

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Third Parties Act means the Contracts (Rights of Third Parties) Act 1999.

 

Total Commitments means the aggregate of the Commitments, being USD200,000,000 at the date of this Agreement, and subject to any increase under Clause 2.4 (Accordion Increase in Commitments).

 

Trade Instruments means any performance bonds or advance payment bonds issued in respect of the obligations of any member of the Group arising in the ordinary course of trading of that member of the Group.

 

Transfer Certificate means a certificate substantially in the form set out in Schedule 5 (Form of Transfer Certificate), with any amendments the Facility Agent may approve or reasonably require, or any other form agreed between the Facility Agent and the Company.

 

Transfer Date means, in relation to an assignment or a transfer, the later of:

 

(a)                                 the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

 

(b)                                 the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate.

 

UK means the United Kingdom of Great Britain and Northern Ireland.

 

Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance Documents.

 

U.S. means the United States of America.

 

U.S. Debtor means an Obligor that is incorporated or organized under the laws of the United States of America or any State of the United States of America (including the District of Columbia) or that has a place of business or property in the United States of America.

 

Unrestricted Cash means cash as reported in the consolidated financial statements of the Company less cash held by Consolidated Structured Entities, cash held in the Group’s manager dealing accounts which represents payments due to and from OEICs and Unit Trusts as a result of trading and rental guarantee deposits.

 

Utilisation means a utilisation of the Facility.

 

Utilisation Date means the date of a Utilisation, being the date on which the relevant Loan is or is to be made.

 

Utilisation Request means a notice substantially in the form set out in Schedule 3 (Form of Utilisation Request).

 

VAT means:

 

(a)                                 any Tax imposed in compliance with Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

(b)                                 any other Tax of a similar nature whether imposed in a member state of the European Union in substitution for, or levied in addition to, such Tax referred to in paragraph (a) above, or imposed elsewhere.

 

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1.2                               Construction

 

(a)                                 Unless this Agreement expressly provides to the contrary, any reference in this Agreement to:

 

(i)                                     a Party or any other person includes its successors in title, permitted assigns and permitted transferees to, or of, all or any combination of its rights and obligations under the Finance Documents;

 

(ii)                                  an amendment includes a supplement, novation, extension (whether of maturity or otherwise), restatement, re-enactment or replacement (however fundamental and whether or not more onerous) and amended will be construed accordingly;

 

(iii)                               assets includes present and future properties, revenues and rights of every description;

 

(iv)                              disposal includes a sale, transfer, assignment, grant, lease, licence, declaration of trust or other disposal, whether voluntary or involuntary, and dispose will be construed accordingly;

 

(v)                                 a Finance Document or any other agreement or instrument includes (without prejudice to any restriction on amendments) any amendment to that Finance Document or other agreement or instrument, including any change in the purpose of, any extension of or any increase in the amount of a facility or any additional facility;

 

(vi)                              a group of Lenders includes all the Lenders and a group of Finance Parties includes all the Finance Parties;

 

(vii)                           indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

 

(viii)                        “know your customer” checks is to the identification checks that a Finance Party requests to meet its obligations under any applicable law or regulation to identify a person who is (or is to become) its customer;

 

(ix)                              a person includes any individual, firm, company, corporation, government, state or agency of a state or any association or body (including a partnership, trust, fund, joint venture or consortium), or any other entity (whether or not having separate legal personality);

 

(x)                                 a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, being of a type with which a person to which it applies is generally accustomed to comply) of any governmental, inter-governmental or supranational body, agency or department, or of any regulatory, self-regulatory or other authority or organisation;

 

(xi)                              a currency is a reference to the lawful currency for the time being of the relevant country;

 

(xii)                           a provision of law is a reference to that provision as amended and includes any subordinate legislation; and

 

(xiii)                        a time of day is a reference to London time.

 

(b)                                 The determination of the extent to which a rate is for a period equal in length to an Interest Period will disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

 

(c)                                  A Clause or a Schedule is a reference to a clause of or a schedule to this Agreement.

 

19



 

(d)                                 The headings in this Agreement are for ease of reference only and do not affect its interpretation.

 

(e)                                  Unless this Agreement expressly provides to the contrary:

 

(i)                                   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;

 

(ii)                                a Default is continuing if it has not been remedied or waived; and

 

(iii)                             any obligation of an Obligor under the Finance Documents which is not a payment obligation remains in force for so long as any payment obligation of any Obligor is outstanding or any Commitment is in force under the Finance Documents.

 

(f)                                   Any reference within a Clause to this Clause means the entirety of that Clause.

 

1.3                               Third party rights

 

(a)                                 Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Third Parties Act to enforce or to enjoy the benefit of any term of this Agreement.

 

(b)                                 Subject to paragraph (a) of Clause 35.3 (Other exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

 

2.                                      THE FACILITY

 

2.1                               The Facility

 

Subject to the terms of this Agreement, the Lenders make available to the Company a revolving loan facility in an aggregate amount equal to the Total Commitments.

 

2.2                               Finance Parties’ rights and obligations

 

(a)                                 The obligations of each Finance Party under the Finance Documents are several.

 

(b)                                 Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents.

 

(c)                                  No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

 

(d)                                 The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and they include the right to repayment of any debt owing to that Finance Party under the Finance Documents.

 

(e)                                  Any debt arising under the Finance Documents to a Finance Party is a separate and independent debt.  Any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in the Facility or its role under a Finance Document is a debt owing to that Finance Party by that Obligor (including if it is payable to the Facility Agent on that Finance Party’s behalf).

 

(f)                                   A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

 

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2.3                               Increase

 

(a)                                 The Company may by giving prior notice to the Facility Agent after the effective date of a cancellation of:

 

(i)                                   the Available Commitments of a Defaulting Lender in accordance with Clause 8.7 (Right of cancellation in relation to a Defaulting Lender); or

 

(ii)                                the Commitments of a Lender in accordance with:

 

(A)                               Clause 8.1 (Illegality); or

 

(B)                               paragraph (a) of Clause 8.6 (Right of replacement or cancellation and repayment in relation to a single Lender),

 

request that the Commitments be increased (and the Commitments shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Commitments or Commitments so cancelled as follows:

 

(iii)                             the increased Commitments will be assumed by one or more banks or financial institutions (each an Increase Lender) and each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender;

 

(iv)                            each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

(v)                               each Increase Lender shall become a Party as a “Lender” and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

(vi)                            the Commitments of the other Lenders shall continue in full force and effect; and

 

(vii)                         any increase in the Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied.

 

(b)                                 An increase in the Commitments will only be effective on:

 

(i)                                   the execution by the Facility Agent of an Increase Confirmation from the relevant Increase Lender;

 

(ii)                                in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the Facility Agent being satisfied that it has complied with 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 Lender. The Facility Agent shall promptly notify the Company and the Increase Lender upon being so satisfied.

 

(c)                                  Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been

 

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approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.

 

(d)                                 The Increase Lender shall, on the date upon which the increase takes effect, pay to the Facility Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 24.3 (Assignment, transfer and accordion accession fees) if the increase was a transfer pursuant to Clause 24.5 (Procedure for transfer) and if the Increase Lender was a New Lender.

 

(e)                                  The Company may pay to the Increase Lender a fee in the amount and at the times agreed between the Company and the Increase Lender in a Fee Letter.

 

(f)                                   Clause 24.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.3 in relation to an Increase Lender as if references in that Clause to:

 

(i)                                     an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;

 

(ii)                                  the “New Lender” were references to that “Increase Lender”; and

 

(iii)                               a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.

 

2.4                               Accordion Increase in Commitments

 

(a)                                 The Company may, by delivery to the Facility Agent of a written notice (each such notice being an Accordion Request), request that the Total Commitments be increased (and the Total Commitments shall be so increased) (each such increase being an Accordion Increase) as described in, and in accordance with, this Clause 2.4.

 

(b)                                 Any increase in the Total Commitments requested in an Accordion Request shall be subject to the following conditions:

 

(i)                                   the Total Commitments, taking into account any Accordion Increase, will not exceed USD250,000,000 or such other larger amount agreed to by all the Lenders;

 

(ii)                                the increased Commitments may, at the discretion of the Company, be assumed by one or more existing Lenders willing to provide such increase and/or by other banks or financial institutions (each provider of the Accordion Increase being an Accordion Lender) selected by the Company which shall become a Party as a Lender;

 

(iii)                             the Facility Agent receives the Accordion Request no later than five days (or such shorter period as the Facility Agent and the Company may agree) before the proposed Accordion Increase Date (as defined below);

 

(iv)                            the amount of each Accordion Increase (the Accordion Increase Amount) shall be not less than USD10,000,000 (or such other smaller amount agreed to by the Facility Agent);

 

(v)                               no Event of Default is continuing or would result from the proposed Accordion Increase;

 

(vi)                            in respect of each Accordion Lender;

 

(A)                               the Facility Agent has received and executed a duly completed Accordion Increase Confirmation from that Accordion Lender; and

 

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(B)                               in relation to an Accordion Lender which is not already a Lender on the date of the Accordion Increase Confirmation, the Facility Agent has performed all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the additional Commitments by that Accordion Lender, the completion of which the Facility Agent shall promptly notify to the Company and the relevant Accordion Lender; and

 

(vii)                           the Accordion Lender(s) agree(s) to assume additional Commitments in an aggregate amount equal to the Accordion Increase Amount.

 

(c)                                  The Accordion Increase will take effect on the date (the Accordion Increase Date) which is the later of:

 

(i)                                   the date specified by the Company in the Accordion Request; and

 

(ii)                                the date on which all of the conditions described in paragraph (b) above have been met.

 

(d)                                 On and from the Accordion Increase Date:

 

(i)                                   the Total Commitments will be increased by the Accordion Increase Amount;

 

(ii)                                each Accordion Lender will assume all the obligations of a Lender in respect of the additional Commitments specified in the Accordion Increase Confirmation of that Accordion Lender;

 

(iii)                             the Company and each Accordion Lender which is not a Lender immediately prior to the Accordion Increase Date shall assume obligations towards one another and/or acquire rights against one another as the Company and the Accordion Lender would have assumed and/or acquired had the Accordion Lender been an Original Lender;

 

(iv)                            each Accordion Lender which is not a Lender immediately prior to the Accordion Increase Date shall become a Party as a “Lender” and each such Accordion Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Accordion Lender and those Finance Parties would have assumed and/or acquired had the Accordion Lender been an Original Lender;

 

(v)                               the Commitments of the other Lenders shall continue in full force and effect; and

 

(vi)                            the terms of this Agreement shall continue in full force and effect and, for the avoidance of doubt, the Margin applicable to the Accordion Increase Amount shall be equal to the Margin which is payable in respect of the existing Commitments as at the Accordion Increase Date and as adjusted in accordance with Clause 9.3 (Margin adjustments).

 

(e)                                  Each Accordion Lender, by executing the Accordion Increase Confirmation, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.

 

(f)                                   The Company shall, promptly after the Accordion Increase Date and provided the Facility Agent has informed the Company thereof, pay to the Facility Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 24.3 (Assignment, transfer and accordion accession fees) and the Company shall promptly on demand pay to the Facility Agent the amount of all costs and expenses (including legal fees) reasonably and properly incurred by it in connection with any increase in the Facility under this Clause 2.4.

 

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(g)                                  The Company may pay to an Accordion Lender a fee in the amount and at the times agreed between the Company and the Accordion Lender in a letter between the Company and the Accordion Lender setting out that fee.  A reference in this Agreement to a fee letter shall include any letter referred to in this paragraph (g).

 

(h)                                 No Lender shall be under any obligation to execute any Accordion Increase Confirmation.

 

2.5                               Extension

 

(a)                                 The Company may by notice to the Facility Agent (the Initial Extension Request) not more than 60 days and not less than 30 days before the first anniversary of the date of this Agreement, request that the Termination Date be extended for a further period of one year.

 

(b)                                 The Company may by notice to the Facility Agent (the Second Extension Request) not more than 60 days and not less than 30 days before the second anniversary of the date of the credit agreement, request that the Termination Date:

 

(i)                                     with respect to Lenders who have agreed to the Initial Extension Request, be extended for a further period of one year; and/or

 

(ii)                                  if no Initial Extension Request has been made, or with respect to Lenders who refused the Initial Extension Request:

 

(A)                               be extended for a period of one year; or

 

(B)                               be extended for a period of two years,

 

as selected by the Company in the notice to the Facility Agent.

 

(c)                                  The Facility Agent must promptly notify the Lenders of any Initial Extension Request or Second Extension Request (an Extension Request).

 

(d)                                 Each Lender may, in its sole discretion, agree to any Extension Request.  Each Lender that agrees to an Extension Request (an Extending Lender) by the date falling 20 days before the relevant anniversary of the date of this Agreement, will extend its Commitments for a further period of one year or two years, as applicable, from the then current Termination Date and the Termination Date with respect to the Commitments of that Lender will be extended accordingly.

 

(e)                                  If any Lender fails to reply to an Extension Request on or before the date falling 20 days before the relevant anniversary of the date of this Agreement, it will be deemed to have refused that Extension Request and its Commitments will not be extended.

 

(f)                                   If any Lender does not agree (or is deemed not to have agreed) to an Extension Request, the Termination Date applicable to its Commitments shall remain that Termination Date which applied to those Commitments immediately prior to the service of the relevant Extension Request and its participation in any outstanding Loan shall be repaid in accordance with Clause 7 (Repayment). Subject to paragraph (h) below, each Extension Request is irrevocable.

 

(g)                                  If one or more (but not all) of the Lenders agree to an Extension Request, then the Facility Agent must notify the Company and the Extending Lenders, identifying in that notification which Lenders have not agreed to the Extension Request.

 

(h)                                 The Company may, on the basis that one or more of the Lenders have not agreed to the Extension Request and no later than the date falling five days before the relevant anniversary of the date of this

 

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Agreement, withdraw the request by notice to the Facility Agent which will promptly notify the Lenders.

 

3.                                      PURPOSE

 

3.1                               Purpose

 

The Company must apply all amounts borrowed by it under the Facility towards the general corporate purposes of the Group.

 

3.2                               Monitoring

 

No Finance Party is bound to monitor or verify the application of any utilisation of the Facility.

 

4.                                      CONDITIONS OF UTILISATION

 

4.1                               Initial conditions precedent

 

(a)                                 The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) if the Facility Agent has received (or waived receipt of) all of the documents and other evidence listed in Part 1 of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Facility Agent.  The Facility Agent must notify the Company and the Lenders promptly on being so satisfied.

 

(b)                                 Except to the extent that the Majority Lenders notify the Facility Agent to the contrary before the Facility Agent gives the notification described in paragraph (a) above, each Lender authorises (but does not require) the Facility Agent to give that notification.  The Facility Agent will not be liable for any cost, loss or liability whatsoever any person incurs as a result of the Facility Agent giving any such notification.

 

4.2                               Further conditions precedent

 

(a)                                 The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

(i)                                     in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and

 

(ii)                                  the Repeating Representations to be made by each Obligor are true in all material respects.

 

(b)                                 The Lenders will only be obliged to comply with Clause 29.10 (Change of currency) if, on the first day of an Interest Period, no Default is continuing or would result from the change of currency and the Repeating Representations to be made by each Obligor are true in all material respects.

 

4.3                               Maximum number

 

No Utilisation Request may be given if, as a result of the proposed Utilisation more than 15 Loans would be outstanding. Any Separate Loan shall not be taken into account in this Clause 4.3.

 

5.                                      UTILISATION

 

5.1                               Delivery of a Utilisation Request

 

The Company may borrow a Loan by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time.

 

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5.2                               Completion of a Utilisation Request

 

(a)                                 A Utilisation Request for a Loan is irrevocable and will not be regarded as having been duly completed unless:

 

(i)                                     the proposed Utilisation Date is a Business Day within the Availability Period;

 

(ii)                                  the currency and amount of the Loan comply with Clause 5.3 (Currency and amount); and

 

(iii)                               the proposed Interest Period of the Loan complies with Clause 10 (Interest Periods).

 

(b)                                 Only one Loan may be requested in each Utilisation Request.

 

5.3                               Currency and amount

 

(a)                                 The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.

 

(b)                                 The amount of the proposed Loan must be:

 

(i)                                     a minimum of USD5,000,000 (or its equivalent); or

 

(ii)                                  such other amount as the Facility Agent may agree,

 

and, in any event, such that its Base Currency Amount is less than or equal to the Available Facility.

 

5.4                               Lenders’ participation

 

(a)                                 If the conditions set out in this Agreement have been met, and subject to Clause 7 (Repayment), each Lender must make its participation in a requested Loan available by the Utilisation Date through its Facility Office by no later than 2:00p.m. to the Facility Agent.

 

(b)                                 The amount of each Lender’s participation in a Loan will be its Pro Rata Share immediately before making the Loan.

 

(c)                                  No Lender is obliged to participate in a Loan if, as a result:

 

(i)                                     its participation in the Loans would exceed its Commitment; or

 

(ii)                                  the Loans would exceed the Total Commitments.

 

(d)                                 The Facility Agent must determine the Base Currency Amount of each Loan which is to be made in an Optional Currency and must notify each Lender of the details of that Loan and the amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 29.1 (Payments to the Facility Agent), in each case, by the Specified Time.

 

6.                                      OPTIONAL CURRENCIES

 

6.1                               Selection of currency

 

(a)                                 The Company must select the currency of a Loan in the applicable Utilisation Request.

 

(b)                                 Unless the Facility Agent otherwise agrees, the Loans may not be denominated at any one time in more than five currencies.

 

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6.2                               Conditions relating to Optional Currencies

 

(a)                                 A currency will constitute an Optional Currency in relation to a Loan for an Interest Period if that Optional Currency:

 

(i)                                     is EUR, GBP or AUD; or

 

(A)                               is readily available in the amount required and freely convertible into the Base Currency in the wholesale market for that currency on the Quotation Day and the first day of that Interest Period; and

 

(B)                               has been approved by the Facility Agent (acting on the instructions of all the Lenders) before receipt by the Facility Agent of the relevant Utilisation Request.

 

(b)                                 If the Facility Agent has received a request from the Company for a currency to be approved as an Optional Currency, the Facility Agent must confirm to the Company by the Specified Time:

 

(i)                                     whether or not the Lenders have approved the currency; and

 

(ii)                                  if approval has been given, the minimum amount (and, if required, integral multiples) for any Loan in that currency.

 

6.3                               Unavailability of a currency for a Loan

 

(a)                                 If before the Specified Time on any Quotation Day:

 

(i)                                     a Lender notifies the Facility Agent that the Optional Currency requested for a Loan is not readily available to it in the amount and for the period required; or

 

(ii)                                  a Lender notifies the Facility Agent that participating in a Loan in the proposed Optional Currency would contravene any law or regulation applicable to it,

 

the Facility Agent must notify the Company to that effect promptly and in any event before the Specified Time on that day.

 

(b)                                 In this event:

 

(i)                                     the relevant Lender must participate in the Loan in the Base Currency (in an amount equal to that Lender’s Pro Rata Share of the Base Currency Amount of the Loan); and

 

(ii)                                  the participation in the Loan of that Lender and any other similarly affected Lender(s) will be treated as a separate Loan denominated in the Base Currency during the relevant Interest Period.

 

(c)                                  Any part of a Loan treated as a separate Loan under this Clause 6.3 will not be taken into account for the purposes of any limit on the number of Loans or currencies outstanding at any one time.

 

6.4                               Optional Currency equivalents

 

The equivalent in the Base Currency of a Loan or part of a Loan in an Optional Currency for the purposes of calculating:

 

(a)                                 whether any limit under this Agreement has been exceeded;

 

(b)                                 the participation of a Lender in a Loan;

 

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(c)                                  the amount of any repayment or prepayment of a Loan; or

 

(d)                                 the amount of a Lender’s Available Commitment,

 

is its Base Currency Amount.

 

7.                                      REPAYMENT

 

(a)                                 The Company must repay each Loan in full on the last day of its Interest Period.

 

(b)                                 Without prejudice to the Company’s obligation under paragraph (a) above, if one or more Loans are to be made available to the Company:

 

(i)                                     on the same day that any maturing Loans are due to be repaid by the Company;

 

(ii)                                  in the same currency as the maturing Loans; and

 

(iii)                               in whole or in part for the purpose of refinancing the maturing Loans,

 

the new Loans will be treated as if applied in or towards repayment of the maturing Loans so that:

 

(A)                               if the aggregate amount of the maturing Loans exceeds the aggregate amount of the new Loans:

 

I.                                        the Company will only be required to pay an amount in cash in the relevant currency equal to that excess; and

 

II.                                   each Lender’s participation in the new Loans will be treated as having been made available and applied by the Company in or towards repayment of that Lender’s participation in the maturing Loans and that Lender will not be required to make its participation in the new Loans available in cash; and

 

(B)                               if the aggregate amount of the maturing Loans is equal to or less than the aggregate amount of the new Loans:

 

I.                                        the Company will not be required to make any payment in cash; and

 

II.                                   each Lender will be required to make its participation in the new Loans available in cash only to the extent that its participation in the new Loans exceeds that Lender’s participation in the maturing Loans and the remainder of that Lender’s participation in the new Loans will be treated as having been made available and applied by the Company in or towards repayment of that Lender’s participation in the maturing Loans.

 

(c)                                  At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Loans then outstanding will be automatically extended to  the Termination Date and will be treated as separate Loans (the Separate Loans) denominated in the currency in which the relevant participations are outstanding.

 

(d)                                 If the Company makes a prepayment of a Utilisation pursuant to Clause 8.4 (Voluntary prepayment), the Company may prepay any outstanding Separate Loan by giving not less than three Business Days’ prior notice to the Facility Agent.  The Facility Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as practicable on receipt.

 

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(e)                                  Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Company by the time and date specified by the Facility Agent (acting reasonably) and will be payable by the Company to the Facility Agent (for the account of that Defaulting Lender) on the last day of each Interest Period of that Loan.

 

(f)                                   The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (c) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan.

 

8.                                      PREPAYMENT AND CANCELLATION

 

8.1                               Illegality

 

(a)                                 If, in any applicable jurisdiction, it becomes unlawful for a Lender to perform any of its obligations as contemplated by any Finance Document or to fund or maintain its participation in any Loan, that Lender must notify the Facility Agent promptly on becoming aware of that event.

 

(b)                                 After a Lender notifies the Facility Agent under paragraph (a) above:

 

(i)                                   the Facility Agent must notify the Company promptly;

 

(ii)                                with immediate effect, that Lender will not be obliged to fund any Loan; and

 

(iii)                             unless that Lender’s participation and Commitment have been transferred pursuant to paragraph (d) of Clause 8.6 (Right of replacement or repayment and cancellation in relation to a single Lender), on the date specified in paragraph (c) below:

 

(A)                               the Company must repay or prepay that Lender’s participation in each Loan; and

 

(B)                               that Lender’s Commitment will be cancelled.

 

(c)                                  The date for:

 

(i)                                     repayment or prepayment of a Lender’s participation in a Loan and cancellation of its corresponding Commitment will be:

 

(A)                               the last day of the Interest Period of that Loan; or

 

(B)                               if earlier, the date specified in that Lender’s notice to the Facility Agent under paragraph (a) above (which must be no earlier than the last day of any applicable grace period permitted by law); and

 

(ii)                                  cancellation of that Lender’s other Commitment will be the date specified in the Lender’s notice to the Facility Agent under paragraph (a) above (which must be no earlier than the last day of any applicable grace period permitted by law).

 

8.2                               Change of control

 

(a)                                 For the purposes of this Clause 8.2:

 

a change of control occurs if any person or group of persons acting in concert gains control of the Company;

 

acting in concert means acting together pursuant to an agreement or understanding (whether formal or informal); and

 

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control means the power to direct the management and policies of an entity (whether through the ownership of voting capital, by contract or otherwise).

 

(b)                                 The Company must notify the Facility Agent promptly on becoming aware of any change of control.  The Facility Agent must then promptly notify the Lenders of that event occurring.

 

(c)                                  After a change of control:

 

(i)                                     no Lender will be obliged to fund a Loan (except for a Rollover Loan); and

 

(ii)                                  if a Lender so requires and notifies the Facility Agent within 30 days of the Company notifying the Facility Agent of the change of control, the Facility Agent must, by not less than 30 days’ notice to the Company:

 

(A)                               cancel the Commitment of that Lender; and

 

(B)                               declare the participation of that Lender in all outstanding Loans, together with accrued interest and all other amounts accrued or outstanding to that Lender under the Finance Documents, to be immediately due and payable.

 

Any such notice will take effect in accordance with its terms.

 

8.3                               Voluntary cancellation

 

(a)                                 The Company may, if it gives the Facility Agent not less than three Business Days’ (or such shorter period as the Majority Lenders may agree) notice, cancel the whole or any part of the Available Facility.

 

(b)                                 Partial cancellation of the Available Facility must be in a minimum amount of USD5,000,000.

 

(c)                                  Any cancellation in part will reduce the Commitment of each Lender pro rata.

 

8.4                               Voluntary prepayment

 

(a)                                 The Company may, if it gives the Facility Agent not less than three Business Days’ (or such shorter period as the Majority Lenders may agree) notice, prepay the whole or any part of a Loan at any time.

 

(b)                                 A prepayment of part of a Loan must be in a minimum amount of USD5,000,000 (or its equivalent).

 

8.5                               Automatic cancellation

 

The unutilised Commitment of each Lender will be automatically cancelled at close of business on the last day of the Availability Period.

 

8.6                               Right of replacement or repayment and cancellation in relation to a single Lender

 

(a)                                 If:

 

(i)                                     any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 13.2 (Tax gross-up); or

 

(ii)                                  any Lender claims any amount from the Company under Clause 13.3 (Tax indemnity) or Clause 14 (Increased Costs),

 

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the Company may, while the circumstances giving rise to the requirement for that increase or payment of that amount to continue, give notice to the Facility Agent of its intention to cancel the Commitment of that Lender and repay or prepay that Lender’s participation in all outstanding Loans, or of its intention to replace that Lender in accordance with paragraph (d) below.

 

(b)                                 On receipt of a notice of prepayment and cancellation under paragraph (a) above in relation to a Lender:

 

(i)                                     the Commitment of that Lender will immediately be reduced to zero; and

 

(ii)                                  the Company must repay or prepay that Lender’s participation in each Loan on the date specified in paragraph (c) below.

 

(c)                                  The date for repayment or prepayment of a Lender’s participation in a Loan will be:

 

(i)                                     the last day of the Interest Period for that Loan which is current on the date of the notice under paragraph (a) above; or

 

(ii)                                  if earlier, the date specified in the Company’s notice to the Facility Agent under paragraph (a) above.

 

(d)                                 If:

 

(i)                                     any of the circumstances set out in paragraph (a) above apply to a Lender; or

 

(ii)                                  the Company becomes obliged to pay an amount in accordance with Clause 8.1 (Illegality) to a Lender,

 

the Company may, on not less than five Business Days’ notice to the Facility Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender must) transfer pursuant to this Agreement all of its rights and obligations under this Agreement.

 

(e)                                  The transferee must be a Lender or other bank or financial institution selected by the Company which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with this Agreement for a purchase price in cash payable at the time of the transfer in an amount equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest (to the extent that the Facility Agent has not given a notification under Clause 24.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation to it under the Finance Documents.

 

(f)                                   The replacement of a Lender pursuant to paragraph (d) above will be subject to the following conditions:

 

(i)                                   the Company will have no right to replace the Facility Agent;

 

(ii)                                neither the Facility Agent nor any Lender will have any obligation to find a replacement Lender;

 

(iii)                             the Lender to be replaced will not be required to pay or surrender any of the fees received by that Lender pursuant to the Finance Documents; and

 

(iv)                            the Lender to be replaced will only be obliged to transfer its rights and obligations in accordance with paragraph (d) above once it is satisfied that it has complied with any “know

 

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your customer” checks or other similar checks required under any applicable law or regulation in relation to that transfer.

 

(g)                                  A Lender to be replaced must perform the checks described in paragraph (f)(iv) above as soon as reasonably practicable after delivery of a notice under paragraph (d) above and must notify the Facility Agent and the Company promptly when it is satisfied that it has complied with those checks.

 

8.7                               Right of cancellation in relation to a Defaulting Lender

 

(a)                                 If any Lender becomes a Defaulting Lender, the Company may, at any time while the Lender continues to be a Defaulting Lender, give the Facility Agent three Business Days’ notice of cancellation of each Available Commitment of that Lender.

 

(b)                                 On the notice referred to in paragraph (a) above becoming effective, each Available Commitment of the Defaulting Lender will immediately be reduced to zero.

 

(c)                                  The Facility Agent must as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.

 

8.8                               Prepayment of Loans

 

(a)                                 Any voluntary prepayment of a Loan under Clause 8.4 (Voluntary prepayment) may be re-borrowed on the terms of this Agreement.

 

(b)                                 Any other prepayment of a Loan may not be re-borrowed.

 

8.9                               Miscellaneous

 

(a)                                 Any notice of cancellation or prepayment under this Clause 8:

 

(i)                                     is irrevocable; and

 

(ii)                                  unless a contrary indication appears in this Agreement, must specify:

 

(A)                               the date on which the relevant cancellation or prepayment is to be made; and

 

(B)                               the amount of that cancellation or prepayment.

 

(b)                                 Any prepayment under this Agreement must be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

 

(c)                                  No prepayment or cancellation is allowed except at the times and in the manner expressly provided for in this Agreement.

 

(d)                                 Subject to Clause 2.3 (Increase) and Clause 2.4 (Accordion increase in Commitments), no amount of the Commitments cancelled under this Agreement may be subsequently reinstated.

 

(e)                                  If the Facility Agent receives a notice under this Clause 8, it must promptly forward a copy of that notice to either the Company or the affected Lender(s), as appropriate.

 

(f)                                   If all or part of a Lender’s participation in a Loan is repaid or prepaid and is not available for re-borrowing (other than by operation of Clause 6.3 (Unavailability of a currency for a Loan)), an equivalent amount of that Lender’s Commitment will be deemed to be cancelled on the date of repayment or prepayment.

 

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8.10                        Application of prepayments

 

Any prepayment of a Loan pursuant to Clause 8.4 (Voluntary prepayment) will be applied pro rata to each Lender’s participation in that Loan.

 

9.                                      INTEREST

 

9.1                               Calculation of interest

 

The rate of interest on each Loan for each Interest Period is the aggregate of the applicable:

 

(a)                                 Margin; and

 

(b)                                 LIBOR or, in relation to any Loan in euro, EURIBOR or, in relation to any Loan in AUD, the Benchmark Rate for that currency.

 

9.2                               Payment of interest

 

Except where this Agreement expressly provides to the contrary, the Company must pay accrued interest on each Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six-Monthly intervals after the first day of the Interest Period).

 

9.3                               Margin adjustments

 

(a)                                 In this Clause 9.3:

 

Rating Agency means Fitch, Moody’s, S&P or any other rating agency approved by the Majority Lenders.

 

(b)                                 The Margin at the date of this Agreement is 0.6333% per annum.

 

(c)                                  Subject to the other provisions of this Clause 9.3, the Margin will be calculated by reference to the table below:

 

Relevant Long-term Credit Rating

 

Margin

Fitch

 

Moody’s

 

S&P

 

(% per annum)

 

 

 

 

 

 

 

A- (or higher)

 

A3 (or higher)

 

A- (or higher)

 

0.40

 

 

 

 

 

 

 

BBB+

 

Baa1

 

BBB+

 

0.50

 

 

 

 

 

 

 

BBB

 

Baa2

 

BBB

 

0.60

 

 

 

 

 

 

 

BBB-

 

Baa3

 

BBB-

 

0.70

 

 

 

 

 

 

 

BB+ (or lower)

 

Ba1 (or lower)

 

BB+ (or lower)

 

0.90

 

(d)                                 The Relevant Long-term Credit Rating for the purposes of this Clause 9 shall initially be the long-term credit rating of the Original Guarantor, provided that if, following the Merger Completion Date, the Company obtains two or more long-term credit ratings from Rating Agencies, then the long-term credit rating in respect of the Company shall thereafter be the Relevant Long-term Credit Rating for

 

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the purposes of determining the applicable Margin in accordance with the table in paragraph (c) above.

 

(e)                                  In the event that one of the Rating Agencies ceases to provide a Relevant Long-term Credit Rating then the Margin shall continue to be determined on the basis of the remaining two Rating Agencies.

 

(f)                                   If the Relevant Long-term Credit Ratings given by the Rating Agencies are such that a different Margin is applicable to each rating, the applicable Margin will be the average of the Margins applicable to the relevant ratings as set out in the table in paragraph (c) above.

 

(g)                                  Any change in the Margin will, subject to paragraph (h) below, apply to each Loan made, or (if outstanding) from the start of its next Interest Period after the change in rating.

 

(h)                                 For so long as:

 

(i)                                     an Event of Default is continuing; or

 

(ii)                                  only one or no Rating Agency gives a Relevant Long-term Credit Rating,

 

the Margin will be the highest applicable rate, being 0.90% per annum.

 

9.4                               Default interest

 

(a)                                 If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest will accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (c) below, is 1% per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each with a duration and Quotation Day selected by the Facility Agent (acting reasonably).

 

(b)                                 Any interest accruing under this Clause 9.4 will be immediately payable by the Obligor on demand by the Facility Agent.

 

(c)                                  If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of its Interest Period:

 

(i)                                     the first Interest Period for that overdue amount will have a duration equal to the unexpired portion of the then current Interest Period relating to that Loan; and

 

(ii)                                  the rate of interest applying to the overdue amount during that first Interest Period will be 1% per annum higher than the rate which would have applied if the overdue amount had not become due.

 

(d)                                 Unpaid interest arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

 

9.5                               Notification of rates of interest

 

(a)                                 The Facility Agent must notify each relevant Party promptly of the determination of a rate of interest under this Agreement.

 

(b)                                 The Facility Agent must notify the Company promptly of each Funding Rate relating to a Loan.

 

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10.                               INTEREST PERIODS

 

10.1                        Selection of Interest Periods

 

(a)                                 Each Loan has one Interest Period only.

 

(b)                                 The Company must select the Interest Period for a Loan in the applicable Utilisation Request.

 

(c)                                  Subject to the other provisions of this Clause 10, the Interest Period for a Loan must be:

 

(i)                                     one, two, three or six Months if the Loan is not in AUD; or

 

(ii)                                  any period specified in respect of the relevant currency in Schedule 13 (Other benchmarks) if the Loan is in AUD,

 

or, in either case, any other period agreed by the Company and all the Lenders participating in that Loan.

 

(d)                                 The Interest Period for a Loan will start on its Utilisation Date.

 

10.2                        Non-Business Days

 

(a)                                 Subject to paragraph (b) below, if an Interest Period would otherwise end on a day which is not a Business Day, it will instead end on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).

 

(b)                                 If a Loan is in AUD and there are rules specified as “Business Day Conventions” for that currency in Schedule 13 (Other benchmarks), those rules will apply to each Interest Period for that Loan.

 

10.3                        No overrunning the Termination Date

 

If an Interest Period would otherwise end after the Termination Date, it will be shortened so that it ends on the Termination Date.

 

10.4                        Notification

 

The Facility Agent must notify each relevant Party of the duration of each Interest Period promptly after ascertaining it.

 

11.                               CHANGES TO THE CALCULATION OF INTEREST

 

11.1                        Unavailability of Screen Rate

 

(a)                                 Interpolated Screen Rate:  If no Screen Rate is available for LIBOR or, if applicable, EURIBOR or, if applicable, the Benchmark Rate for the Interest Period of a Loan, the applicable LIBOR or EURIBOR or Benchmark Rate will be the Interpolated Screen Rate for a period equal to the Interest Period of that Loan.

 

(b)                                 Shortened Interest Period:  If no Screen Rate is available for LIBOR or, if applicable, EURIBOR or, if applicable, the Benchmark Rate for:

 

(i)                                     the currency of a Loan; or

 

(ii)                                  the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,

 

35



 

the Interest Period of that Loan will (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable LIBOR or EURIBOR or Benchmark Rate for that shortened Interest Period will be determined pursuant to the relevant definition.

 

(c)                                  Shortened Interest Period and Historic Screen Rate: If the Interest Period of a Loan is, after giving effect to paragraph (b) above, either the applicable Fallback Interest Period or shorter than the applicable Fallback Interest Period and, in either case, no Screen Rate is available for LIBOR or, if applicable, EURIBOR or, if applicable, the Benchmark Rate for:

 

(i)                                     the currency of that Loan; or

 

(ii)                                  the Interest Period of that Loan and it is not possible to calculate the Interpolated Screen Rate,

 

the applicable LIBOR or EURIBOR or Benchmark Rate will be the Historic Screen Rate for that Loan.

 

(d)                                 Shortened Interest Period and Interpolated Historic Screen Rate: If paragraph (c) above applies but no Historic Screen Rate is available for the Interest Period of the Loan, the applicable LIBOR or EURIBOR or Benchmark Rate will be the Interpolated Historic Screen Rate for a period equal to the Interest Period of the Loan.

 

(e)                                  Reference Bank Rate: If paragraph (d) above applies but it is not possible to calculate the Interpolated Historic Screen Rate, the Interest Period of the Loan will, if it has been shortened pursuant to paragraph (b) above, revert to its previous length and the applicable LIBOR or EURIBOR or Benchmark Rate will be the Reference Bank Rate as of the Specified Time for the currency of the Loan for a period equal to the Interest Period of the Loan.

 

(f)                                   Cost of funds: If paragraph (e) above applies but no Reference Bank Rate is available for the relevant currency or Interest Period, there will be no LIBOR or EURIBOR or Benchmark Rate for the Loan and Clause 11.4 (Cost of funds) will apply to the Loan for that Interest Period.

 

11.2                        Calculation of Reference Bank Rate

 

(a)                                 Subject to paragraph (b) below, if LIBOR or EURIBOR or a Benchmark Rate is to be determined on the basis of a Reference Bank Rate but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank Rate will be calculated on the basis of the quotations of the remaining Reference Banks.

 

(b)                                 If at or about:

 

(i)                                     12:00 p.m. on the Quotation Day; or

 

(ii)                                  in the case of a Benchmark Rate, the time specified in respect of the relevant currency in Schedule 13 (Other benchmarks),

 

none or only one of the Reference Banks supplies a quotation, there will be no Reference Bank Rate for the relevant Interest Period.

 

11.3                        Market disruption

 

If before:

 

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(a)                                 close of business in London on the Quotation Day for the relevant Interest Period; or

 

(b)                                 in the case of a Loan in AUD, the time specified in respect of that currency in Schedule 13 (Other benchmarks),

 

the Facility Agent receives notification from at least two Lenders (whose participations in a Loan exceed 35% of that Loan) that the cost to each affected Lender of funding its participation in that Loan from whatever source the relevant Lender may reasonably select would be in excess of LIBOR or, if applicable, EURIBOR or, if applicable, the Benchmark Rate, then Clause 11.4 (Cost of funds) will apply to that Loan for the relevant Interest Period.

 

11.4                        Cost of funds

 

(a)                                 If this Clause 11.4 applies, the rate of interest on the relevant Loan for the relevant Interest Period will be the percentage rate per annum which is the sum of:

 

(i)                                     the Margin; and

 

(ii)                                  the weighted average of the rates notified to the Facility Agent by each Lender as soon as practicable, and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select.

 

(b)                                 If this Clause 11.4 applies and the Facility Agent or the Company so requires, the Facility Agent and the Company must enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest and/or cost of funding for the affected Loan.

 

(c)                                  Any alternative basis agreed pursuant to paragraph (b) above will, with the prior consent of all the Lenders and the Company, be binding on all Parties.

 

(d)                                 If this Clause 11.4 applies but any Lender does not notify the Facility Agent of a rate by the time specified in paragraph (a)(ii) above, the rate of interest on the relevant Loan for the relevant Interest Period will be calculated on the basis of the rates notified by the other Lenders.

 

11.5                        Break Costs

 

(a)                                 The Company, within three Business Days of demand by a Finance Party, must pay to that Finance Party its Break Costs if all or any part of a Loan or Unpaid Sum is paid on a day other than the last day of an applicable Interest Period.

 

(b)                                 Each Lender must, together with its demand, provide a certificate confirming the amount of any Break Costs it claims.

 

12.                               FEES

 

12.1                        Ticking fee

 

(a)                                 The Company must pay to the Facility Agent (for the account of each Lender) a ticking fee computed at the rate of 10% of the applicable Margin on that Lender’s Available Commitment.

 

(b)                                 The ticking fee shall accrue on and from the date falling 30 days after the date of this Agreement until but excluding the Merger Completion Date.

 

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(c)                                  The accrued ticking fee is payable:

 

(i)                                     on the Merger Completion Date; or

 

(ii)                                  if the Merger Completion Date does not occur within six months of the date of this Agreement, on the last day of each successive period of six months falling after the date of this Agreement; or

 

(iii)                               if cancelled in full, on the cancelled amount of a Lender’s Commitment at the time the cancellation is effective.

 

(d)                                 No ticking fee is payable on any Commitment of a Lender of any day on which that Lender is a Defaulting Lender.

 

12.2                        Commitment fee

 

(a)                                 The Company must pay to the Facility Agent (for the account of each Lender) a commitment fee computed at the rate of 35% of the applicable Margin on that Lender’s Available Commitment.

 

(b)                                 The commitment fee shall accrue on and from the Merger Completion Date.

 

(c)                                  The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the Availability Period, on the last day of the Availability Period, and, if cancelled in full, on the cancelled amount of a Lender’s Commitment at the time the cancellation is effective.

 

(d)                                 No commitment fee is payable on any Commitment of a Lender of any day on which that Lender is a Defaulting Lender.

 

12.3                        Arrangement fee

 

The Company must pay to each Arranger (for its own account) an arrangement fee in the amount and manner agreed in a Fee Letter.

 

12.4                        Facility Agent’s fee

 

The Company must pay to the Facility Agent (for its own account) an agency fee in the amount and manner agreed in a Fee Letter.

 

12.5                        Utilisation fee

 

(a)                                 The Company must pay to the Facility Agent (for the account of each Lender) a utilisation fee computed at the rate of:

 

(i)                                     for each day on which the aggregate amount of the outstanding Loans is less than or equal to 331/3% of the Total Commitments, 0.10% per annum;

 

(ii)                                  for each date on which the aggregate amount of the outstanding Loans exceeds 331/3% of the Total Commitments but is less than or equal to 662/3% of the Total Commitments, 0.20% per annum; and

 

(iii)                               for each day on which the aggregate amount of the outstanding Loans exceeds 662/3% of the Total Commitments, 0.30% per annum.

 

(b)                                 The utilisation fee is payable on the amount of each Lender’s participation in the Loans.

 

38



 

(c)                                  The accrued utilisation fee is payable on the last day of each successive period of three Months which ends during the Availability Period, on the last date of the Availability Period and, if cancelled in full, at the time the cancellation of a Lender’s Commitment is effective.

 

13.                               TAX GROSS-UP AND INDEMNITIES

 

13.1                        Definitions

 

(a)                                 In this Clause 13:

 

Borrower DTTP Filing means an HM Revenue & Customs Form DTTP2 duly completed and filed by the Company, which:

 

(i)                                   where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Schedule 1 (Original Parties) and is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or

 

(ii)                                where it relates to a Treaty Lender that is a New Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the relevant Transfer Certificate, Assignment Agreement, Increase Confirmation or Accordion Increase Confirmation and is filed with HM Revenue & Customs within 30 days of the relevant Transfer Date, Increase Date or Accordion Increase Date (as the case may be); or

 

(iii)                             where it relates to a Treaty Lender in respect of which a Borrower DTTP Filing within paragraph (i) or (ii) above has already been made, and where HM Revenue & Customs have already given the Company authority to make payments to that Lender without a Tax Deduction, and:

 

(A)                               that authority has ceased to have effect by reason of any of the conditions on which that authority was given having ceased to become applicable; or

 

(B)                               that authority is time limited and is due to expire within 60 Business Days,

 

contains the scheme reference number and jurisdiction of tax residence referred to in paragraph (i) or (ii) above, as appropriate, and is filed with HM Revenue & Customs by the date 30 Business Days after that authority has ceased to have effect (for cases falling within paragraph (A) above) or 60 Business Days before the date on which the authority is due to expire (for cases falling within paragraph (B) above).

 

Building Society Lender means a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document.

 

Protected Party means a Finance Party which incurs or will incur any cost, loss or liability, or is or will be required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

 

Qualifying Lender means a Lender which is:

 

(i)                                     a UK Lender; or

 

(ii)                                  a Treaty Lender.

 

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Tax Confirmation means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance made under a Finance Document is either:

 

(i)                                     a company resident in the UK for UK tax purposes;

 

(ii)                                  a partnership of which each member is:

 

(A)                               a company resident in the UK for UK tax purposes; or

 

(B)                               a company not resident in the UK for UK tax purposes which carries on a trade in the UK through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

(iii)                               a company not resident in the UK for UK tax purposes which carries on a trade in the UK through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

 

Tax Credit means a credit against, relief or remission for, or repayment of any Tax.

 

Treaty Lender means a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and which:

 

(i)                                   is treated as a resident of a Treaty State for the purposes of the Treaty; and

 

(ii)                                does not carry on a business in the UK through a permanent establishment with which that Lender’s participation in the advance is effectively connected; and

 

(iii)                             meets all other conditions in the relevant Treaty for full exemption from Tax imposed by the UK on interest, except that for this purpose it shall be assumed that the following are satisfied:

 

(A)                               any condition which relates (expressly or by implication) to:

 

I.                                      there not being a special relationship between the Obligor and a Lender or between both of them and another person; or

 

II.                                 the amounts or terms of any Loan or the Finance Documents; or

 

III.                            to any other matter that is outside the exclusive control of that Lender and its Affiliates and which does not relate solely to the Lender’s circumstances or those of its Affiliates; and

 

(B)                               any necessary procedural formalities.

 

Treaty State means a jurisdiction having a double taxation agreement (a Treaty) with the UK which makes provision for full exemption from Tax imposed by the UK on interest.

 

UK Lender means:

 

(i)                                     a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

 

40



 

(A)                               a Lender:

 

(1)                                 which is a bank (as defined for the purposes of section 879 of the ITA) making an advance under a Finance Document and is within the charge to UK corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or

 

(2)                                 in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that the advance was made and which is within the charge to UK corporation tax as respects any payments of interest made in respect of that advance, or is a bank (as defined for the purpose of section 879 of the ITA) and would be within such charge as respects such payments apart from section 18A of the CTA; or

 

(B)                               a Lender which is:

 

(1)                                 a company resident in the UK for UK tax purposes;

 

(2)                                 a partnership of which each member is:

 

(aa)                          a company resident in the UK for UK tax purposes; or

 

(bb)                          a company not resident in the UK for UK tax purposes which carries on a trade in the UK through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

 

(3)                                 a company not resident in the UK for UK tax purposes which carries on a trade in the UK through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or

 

(ii)                                  a Building Society Lender.

 

UK Non-Bank Lender means:

 

(i)                                     where a Lender becomes a Party on the day on which this Agreement is entered into, a Lender listed in Schedule 1 (Original Parties) as a UK Non-Bank Lender; and

 

(ii)                                  where a Lender becomes a Party after the day on which this Agreement is entered into, a Lender which gives a Tax Confirmation in the Assignment Agreement or Transfer Certificate which it executes on becoming a Party.

 

(b)                                Unless this Clause 13 expressly provides to the contrary, a reference to determines or determined means a determination made in the absolute discretion of the person making the determination.

 

(c)                                  In this Clause 13:

 

41



 

(i)                                     references to a company do not include a limited liability partnership (LLP) under the Limited Liability Partnership Act 2000 in relation to which section 863(1) of the Income Tax (Trading and Other Income) Act 2005 applies; and

 

(ii)                                  references to a partnership include an LLP.

 

13.2                        Tax gross-up

 

(a)                                 Each Obligor must make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

 

(b)                                 The Company must, promptly on becoming aware that an Obligor must make a Tax Deduction (or that there is a change in the rate or the basis of a Tax Deduction), notify the Facility Agent accordingly.  A Lender must notify the Facility Agent promptly on becoming so aware in respect of a payment payable to that Lender.  If the Facility Agent receives such notification, it must notify the affected Parties promptly.

 

(c)                                  If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor must be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

(d)                                 A payment will not be increased under paragraph (c) above by reason of a Tax Deduction on account of Tax imposed by the UK, if on the date on which the payment falls due:

 

(i)                                     the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not, or has ceased to be, a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or

 

(ii)                                  the relevant Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of UK Lender and:

 

(A)                               an officer of HM Revenue & Customs has given (and not revoked) a direction (a Direction) under section 931 of the ITA (as that provision has effect on the date on which the relevant Lender became a Party) which relates to the payment;

 

(B)                               that Lender has received from the Obligor making the payment or from the Company a certified copy of that Direction; and

 

(C)                               the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

 

(iii)                               the relevant Lender is a Qualifying Lender solely by virtue of paragraph (i)(B) of the definition of UK Lender and:

 

(A)                               the relevant Lender has not given a Tax Confirmation to the Company; and

 

(B)                               the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Company, on the basis that the Tax Confirmation would have enabled the Company to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or

 

42



 

(iv)                              the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that (subject to the Obligor completing any necessary procedural formalities which it is unable to complete as a result of the failure of the relevant Lender to comply with its obligations under paragraph (g) or (h) below) (as applicable)) the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under paragraph (g) or (h) below (as applicable).

 

(e)                                  If an Obligor is required to make a Tax Deduction, that Obligor must make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

 

(f)                                   Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction or payment must deliver to the Facility Agent for the Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) the appropriate payment has been paid to the relevant taxing authority.

 

(g)                                  (i)                                     Subject to paragraph (ii) below, a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled must co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

 

(ii)                                   (A)                              A Treaty Lender which becomes a Party on the day on which this Agreement is entered into that holds a passport under the HM Revenue & Customs DT Treaty Passport scheme, and which wants that scheme to apply to this Agreement, must confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Schedule 1 (Original Parties); and

 

(B)                               a New Lender that is a Treaty Lender that holds a passport under the HM Revenue & Customs DT Treaty Passport scheme, and which wants that scheme to apply to this Agreement, must, if the HM Revenue & Customs Treaty Passport scheme is still in operation, confirm its scheme reference number and its jurisdiction of tax residence in the Transfer Certificate, Assignment Agreement, Increase Confirmation or Accordion Increase Confirmation which it executes,

 

and, having done so, that Lender will be under no obligation under paragraph (i) above with respect to the relevant Obligor, if the HM Revenue & Customs Treaty Passport scheme is still in operation.

 

(h)                                 If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (g)(ii) above and:

 

(i)                                     the Company has not made a Borrower DTTP Filing in respect of that Lender; or

 

(ii)                                  the Company has made a Borrower DTTP Filing in respect of that Lender but:

 

(A)                               that Borrower DTTP Filing has been rejected by HM Revenue & Customs; or

 

(B)                               HM Revenue & Customs has not given the Company authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing,

 

and, in each case, the Company has notified that Lender in writing, that Lender and the Company must co-operate in completing any additional procedural formalities necessary for the Company to obtain authorisation to make that payment without a Tax Deduction.

 

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(i)                                     If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with paragraph (g)(ii) above, no Obligor may make a Borrower DTTP Filing or file any other form relating to the HM Revenue & Customs DT Treaty Passport scheme in respect of that Lender’s Commitment or its participation in any Loan unless the Lender otherwise agrees.

 

(j)                                    The Company must, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Facility Agent for delivery to the relevant Lender.

 

(k)                                 A UK Non-Bank Lender which becomes a Party on the day on which this Agreement is entered into gives a Tax Confirmation to the Company by entering into this Agreement.

 

(l)                                     A UK Non-Bank Lender must notify the Company and the Facility Agent promptly if there is any change in the position from that set out in the Tax Confirmation.

 

13.3                        Tax indemnity

 

(a)                                 The Company must (within three Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the cost, loss or liability which that Protected Party determines will be or has been (directly or indirectly) incurred for or on account of Tax by that Protected Party in respect of a payment received or receivable (or any payment deemed to be received or receivable) or otherwise under a Finance Document.

 

(b)                                 Paragraph (a) above does not apply:

 

(i)                                     with respect to any Tax assessed on a Finance Party:

 

(A)                               under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

 

(B)                               under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,

 

if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or

 

(ii)                                  to the extent a cost, loss or liability:

 

(A)                               is compensated for by an increased payment under Clause 13.2 (Tax gross-up); or

 

(B)                               would have been compensated for by an increased payment under Clause 13.2 (Tax gross-up) but was not compensated solely because one of the exclusions in that Clause applied; or

 

(C)                               is in respect of an amount of (i) stamp duty, registration or other similar Tax or (ii) VAT, that is compensated for by a payment under clause 13.6 or 13.7 (as applicable) or which would have been but was not compensated solely because one of the exclusions in the relevant clause applied; or

 

(D)                               relates to a FATCA Deduction required to be made by a Party.

 

(c)                                  A Protected Party making, or intending to make, a claim under paragraph (a) above must notify the Facility Agent promptly of the event which will give, or has given, rise to the claim, following which the Facility Agent must notify the Company promptly.

 

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(d)                                 A Protected Party must, on receiving a payment from an Obligor under this Clause 13.3, notify the Facility Agent promptly.

 

13.4                        Tax Credit

 

If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

 

(a)                                 a Tax Credit is attributable to:

 

(i)                                     an increased payment of which that Tax Payment forms part;

 

(ii)                                  that Tax Payment; or

 

(iii)                               a Tax Deduction in consequence of which that Tax Payment was required; and

 

(b)                                 that Finance Party has obtained and utilised that Tax Credit,

 

the Finance Party must pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.

 

13.5                        Lender status confirmation

 

(a)                                 Each Lender which becomes a Party after the date of this Agreement must indicate, in the Transfer Certificate, Assignment Agreement, Increase Confirmation or Accordion Increase Confirmation which it executes on becoming a Party, and for the benefit of the Facility Agent and without liability to any Obligor, which of the following categories it falls in:

 

(i)                                     not a Qualifying Lender;

 

(ii)                                  a Qualifying Lender (other than a Treaty Lender); or

 

(iii)                               a Treaty Lender.

 

(b)                                 If a New Lender fails to indicate its status in accordance with this Clause 13.5 then that New Lender will be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Facility Agent which category applies (and the Facility Agent, on receipt of such notification, must inform the Company).

 

(c)                                  A Transfer Certificate, Assignment Agreement, Increase Confirmation or Accordion Increase Confirmation will not be invalidated by any failure of a Lender to comply with this Clause 13.5.

 

13.6                        Stamp taxes

 

The Company must pay and (within three Business Days of demand) indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, stamp duty land tax, registration or other similar Tax payable in respect of any Finance Document.

 

13.7                        Value added taxes

 

(a)                                 All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document, and such Finance Party is required to account to the relevant

 

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tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying the consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).

 

(b)                                 If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Finance Document, and any Party other than the Recipient (the Relevant Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

 

(i)                                     (where the Supplier is the person required to account to the relevant tax authority for the VAT), the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of such VAT.  The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

(ii)                                  (where the Recipient is the person required to account to the relevant tax authority for the VAT), the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

 

(c)                                  Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party must reimburse and indemnify (as the case may be) the Finance Party for the full amount of such cost or expense, including that part which represents VAT, except to the extent that the Finance Party reasonably determines that it is entitled to credit or repayment from the relevant tax authority.

 

(d)                                 Any reference in this Clause 13.7 to any Party will, at any time when that Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of that group at that time (the term representative member to have the same meaning as in the Value Added Tax Act 1994).

 

(e)                                  In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.

 

13.8                        FATCA information

 

(a)                                 Subject to paragraph (c) below, each Party must, within ten Business Days of a reasonable request by another Party:

 

(i)                                     confirm to that other Party whether it is:

 

(A)                               a FATCA Exempt Party; or

 

(B)                               not a FATCA Exempt Party; and

 

(ii)                                  supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party requests for the purposes of that other Party’s compliance with FATCA.

 

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(b)                                 If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be, a FATCA Exempt Party, that Party must notify that other Party reasonably promptly.

 

(c)                                  Paragraph (a) above shall not oblige any Finance Party to do anything under paragraph (a) or (b) above which would or might in its reasonable opinion constitute a breach of any applicable:

 

(i)                                     law or regulation;

 

(ii)                                  fiduciary duty; or

 

(iii)                               duty of confidentiality.

 

(d)                                 If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information relating to its status under FATCA requested in accordance with paragraph (a) above (including where paragraph (c) above applies), then that Party may be treated for the purposes of the Finance Documents (and payments made under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

 

13.9                        FATCA Deduction

 

(a)                                 Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party is 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.

 

(b)                                 Each Party must, promptly on 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), notify the Party to whom it is making the payment and, in addition, must notify the Company and the Facility Agent, and the Facility Agent must promptly notify the other Finance Parties.

 

13.10                 Other information

 

(a)                                 Subject to paragraph (b) below, each Party must, within ten Business Days of a reasonable request by another Party, supply to that other Party such forms, documentation and other information relating to its status as that other Party requests to enable that other Party to comply with any regulations made under section 222 of the Finance Act 2013 or any other applicable law or regulation implementing similar international arrangements for the exchange of Tax or financial information between jurisdictions.

 

(b)                                 No Party is obliged to do anything under paragraph (a) above which would or might in its reasonable opinion constitute a beach of any applicable:

 

(i)                                     law or regulation;

 

(ii)                                  fiduciary duty; or

 

(iii)                               duty of confidentiality.

 

14.                               INCREASED COSTS

 

14.1                        Definitions

 

In this Agreement:

 

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Basel II means the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III).

 

Basel III means:

 

(a)                                 the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee in December 2010, each as amended;

 

(b)                                 the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement — Rules text” published by the Basel Committee in November 2011, as amended; and

 

(c)                                  any further guidance or standards published by the Basel Committee relating to “Basel III”.

 

Basel Committee means the Basel Committee on Banking Supervision.

 

CRD IV means:

 

(a)                                 Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and

 

(b)                                 Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms.

 

Increased Costs means:

 

(a)                                 a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital;

 

(b)                                 an additional or increased cost; or

 

(c)                                  a reduction of any amount due and payable under any Finance Document,

 

which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into a Finance Document or funding or performing its obligations under any Finance Document.

 

14.2                        Increased Costs

 

Except as provided below in this Clause 14, the Company must pay to a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:

 

(a)                                 the introduction of, or any change in, or any change in the interpretation, administration or application of, any law or regulation;

 

(b)                                 compliance with any law or regulation made after the date of this Agreement; or

 

(c)                                  the implementation or application of, or compliance with, Basel III or CRD IV or any other law or regulation which implements Basel III or CRD IV (whether such implementation,

 

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application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

 

14.3                        Increased Costs claims

 

(a)                                 A Finance Party intending to make a claim for any Increased Costs must notify the Facility Agent of the circumstances giving rise to and the amount of the claim, following which the Facility Agent must promptly notify the Company.

 

(b)                                 Each Finance Party must, together with its demand, provide a certificate confirming the amount of its Increased Costs.

 

14.4                        Exceptions

 

The Company need not make any payment for any Increased Costs to the extent that the Increased Cost is:

 

(a)                                 attributable to a Tax Deduction required by law to be made by an Obligor;

 

(b)                                 attributable to a FATCA Deduction required to be made by a Party;

 

(c)                                  compensated for by Clause 13.3 (Tax indemnity) (or would have been compensated for under Clause 13.3 (Tax indemnity) but was not compensated for solely because any of the exclusions in paragraph (b) of Clause 13.3 (Tax indemnity) applied;

 

(d)                                 attributable to the implementation or application of, or compliance with, Basel III or CRD IV or any other law or regulation which implements Basel III or CRD IV (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates) unless the following conditions are satisfied (i) the relevant Finance Party confirms to the Facility Agent and the Company that it is seeking to recover Basel III or CRD IV costs to a similar extent from all borrowers with credit ratings similar to the Company’s where the facilities extended to such borrowers include a right for the Finance Party to recover such costs; (ii) the relevant Finance Party has notified the Facility Agent of its claim for the relevant Increased Costs within four months of its incurrence; and (iii) the relevant Increased Costs that are the subject of the claim were not capable of being determined with sufficient accuracy by the relevant Finance Party (acting reasonably) prior to that Finance Party becoming Party to this Agreement;

 

(e)                                  attributable to the wilful breach by the relevant Finance Party or any of its Affiliates of any law or regulation; or

 

(f)                                   attributable to the implementation or application of, or compliance with, Basel II or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

 

15.                               OTHER INDEMNITIES

 

15.1                        Currency indemnity

 

(a)                                 The Company must (or must procure that an Obligor will) as an independent obligation indemnify each Finance Party against any cost, loss or liability arising out of or as a result of:

 

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(i)                                     that Finance Party receiving an amount in respect of an Obligor’s liability under the Finance Documents; or

 

(ii)                                  that liability being converted into a claim, proof, order, judgment or award,

 

in a currency other than the currency in which the amount is expressed to be payable under the relevant Finance Document.

 

(b)                                 To the extent permitted by law, 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.

 

15.2                        Other indemnities

 

(a)                                 The Company must (or must procure that an Obligor will) indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:

 

(i)                                     the occurrence of any Event of Default;

 

(ii)                                  a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability resulting from any distribution or redistribution of any amount among the Lenders under this Agreement;

 

(iii)                               funding, or making arrangements to fund, its participation in a Loan requested in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

 

(iv)                              a Loan (or part of a Loan) not being prepaid in accordance with the Finance Documents.

 

(b)                                 The Company’s liability in each case includes any cost, loss or liability incurred on account of funds borrowed, contracted for or utilised to fund any Loan or any other amount payable under any Finance Document.

 

15.3                        Indemnity to the Facility Agent

 

The Company must indemnify the Facility Agent against any cost, loss or liability incurred by the Facility Agent as a result of:

 

(a)                                 investigating any event which the Facility Agent reasonably believes is a Default;

 

(b)                                 acting or relying on any notice, request or instruction which the Facility Agent reasonably believes to be genuine, correct and appropriately authorised; or

 

(c)                                  instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.

 

16.                               MITIGATION BY THE LENDERS

 

16.1                        Mitigation

 

(a)                                 Each Finance Party must, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in the Facility ceasing to be available or any amount becoming payable under or pursuant to, or being cancelled pursuant to, any of Clause 8.1 (Illegality), Clause 13 (Tax gross-up and indemnities), Clause 14 (Increased Costs) including

 

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without limitation transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

 

(b)                                 Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

 

16.2                        Limitation of liability

 

(a)                                 The Company must indemnify each Finance Party promptly for any cost, loss or liability reasonably incurred by that Finance Party as a result of steps taken by it under this Clause 16.

 

(b)                                 A Finance Party is not obliged to take any steps under this Clause 16 if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

 

17.                               COSTS AND EXPENSES

 

17.1                        Transaction expenses

 

The Company must pay to each Administrative Party the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with the negotiation, preparation, printing, execution, syndication and perfection of:

 

(a)                                 this Agreement and any other documents referred to in this Agreement; and

 

(b)                                 any other Finance Documents executed after the date of this Agreement.

 

17.2                        Amendment costs

 

If:

 

(a)                                 an Obligor requests an amendment, waiver or consent in connection with a Finance Document; or

 

(b)                                 an amendment is required or expressly contemplated under a Finance Document,

 

the Company must reimburse the Facility Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by it in responding to, evaluating, negotiating or complying with that request or amendment.

 

17.3                        Enforcement costs

 

The Company must pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

 

18.                               GUARANTEE AND INDEMNITY

 

18.1                        Guarantee and indemnity

 

Each Guarantor irrevocably and unconditionally jointly and severally:

 

(a)                                 guarantees to each Finance Party punctual performance by the Company of all of the Company’s payment obligations under the Finance Documents;

 

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(b)                                 undertakes with each Finance Party that whenever the Company does not pay any amount when due under or in connection with any Finance Document, that Guarantor must immediately on demand pay that amount as if it were the principal obligor in respect of that amount; and

 

(c)                                  agrees with each Finance Party that if any obligation guaranteed by that Guarantor is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability that Finance Party incurs as a result of the Company not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by the Company under any Finance Document on the date when it would have been due.  The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 18 if the amount claimed had been recoverable on the basis of a guarantee.

 

18.2                        Continuing guarantee

 

This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

 

18.3                        Reinstatement

 

If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 18 will continue or be reinstated as if the discharge, release or arrangement had not occurred.

 

18.4                        Waiver of defences

 

The obligations of each Guarantor under this Clause 18 will not be affected by an act, omission, matter or thing which, but for this Clause 18, would reduce, release or prejudice any of its obligations under this Clause 18 including (without limitation and whether or not known to it or any Finance Party):

 

(a)                                 any time, waiver or consent granted to, or composition with, any Obligor or other person;

 

(b)                                 the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

 

(c)                                  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 Obligor or other person;

 

(d)                                 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;

 

(e)                                  any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;

 

(f)                                   any amendment of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any

 

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facility or the addition of any new facility under any Finance Document or other document or security;

 

(g)                                  any unenforceability, illegality, invalidity or non-provability of any obligation of any person under any Finance Document or any other document or security; or

 

(h)                                 any insolvency, resolution or similar proceedings.

 

18.5                        Amendments to the Finance Documents

 

(a)                                 Without limiting Clause 18.4 (Waiver of defences), each Guarantor acknowledges that the Finance Documents may from time to time be amended (and that term has the wide meaning given to it by Clause 1.2 (Construction)).

 

(b)                                 Each Guarantor confirms its intention that:

 

(i)                                     any amendment to a Finance Document is within the scope of this guarantee; and

 

(ii)                                  this guarantee extends to any amount payable by the Company under or in connection with a Finance Document as amended.

 

(c)                                  Each Guarantor agrees that the confirmations in paragraph (b) above apply regardless of:

 

(i)                                     why or how a Finance Document is amended (including the extent of the amendment and any change in the parties);

 

(ii)                                  whether any amount payable by the Company under or in connection with the amended Finance Document in any way relates to any amount that would or may have been payable had the amendment not taken place;

 

(iii)                               the extent to which the Guarantor’s liability under this guarantee (whether present or future, actual or contingent), or any right it may have as a result of entering into or performing its obligations under this guarantee, changes or may change as a result of the amendment; and

 

(iv)                              whether the Guarantor was aware of or consented to the amendment.

 

18.6                        Immediate recourse

 

(a)                                 Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to:

 

(i)                                     proceed, whether by virtue of the droit de discussion or otherwise, against or enforce any other rights or security or claim payment from any person; and

 

(ii)                                  divide, apportion or reduce, whether by virtue of the droit de division or otherwise, any liability under this Clause 18 with any person,

 

before claiming from that Guarantor under this Clause 18.

 

(b)                                 This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

 

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18.7                        Appropriations

 

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:

 

(a)                                 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 them in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor will be entitled to the benefit of such moneys, security or rights; and

 

(b)                                 hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 18.

 

18.8                        Deferral of Guarantor’s rights

 

(a)                                 Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full or unless the Facility Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising under this Clause 18:

 

(i)                                     to be indemnified by an Obligor;

 

(ii)                                  to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents;

 

(iii)                               to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;

 

(iv)                              to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under this Clause;

 

(v)                                 to exercise any right of set-off against any Obligor; and/or

 

(vi)                              to claim or prove as a creditor of any Obligor in competition with any Finance Party.

 

(b)                                 If a Guarantor receives any benefit, payment or distribution in relation to such rights, it must hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and must promptly pay or transfer them to the Facility Agent or as the Facility Agent may direct for application in accordance with Clause 29 (Payment mechanics).

 

18.9                        Release of Guarantors’ right of contribution

 

If any Guarantor (a Retiring Guarantor) ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor, then on the date such Retiring Guarantor ceases to be a Guarantor:

 

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(a)                                 that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

 

(b)                                 each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

 

18.10                 Additional security

 

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

 

18.11                 Limitations

 

(a)                                 This guarantee does not apply to any liability to the extent that it would result in this guarantee constituting unlawful financial assistance within the meaning of sections 678 or 679 of the Companies Act 2006 or any equivalent and applicable provisions under the laws of the jurisdiction of incorporation of the relevant Guarantor.

 

(b)                                 The obligations of any Additional Guarantor are subject to any limitations set out in the Accession Letter executed by that Additional Guarantor

 

18.12                 US Guarantors

 

(a)                                 In this Agreement:

 

fraudulent transfer law means any applicable United States bankruptcy and State fraudulent transfer and conveyance statute and any related case law;

 

U.S. Guarantor means any Guarantor that is a U.S. Debtor; and

 

terms used in this Clause 18.12 are to be construed in accordance with the fraudulent transfer laws.

 

(b)                                 Each U.S. Guarantor acknowledges that:

 

(i)                                     it will receive valuable direct or indirect benefits as a result of the transactions financed by the Finance Documents;

 

(ii)                                  those benefits will constitute reasonably equivalent value and fair consideration for the purpose of any fraudulent transfer law; and

 

(iii)                               each Finance Party has acted in good faith in connection with the guarantee given by that U.S. Guarantor and the transactions contemplated by the Finance Documents.

 

(c)                                  Each Finance Party agrees that each U.S. Guarantor’s liability under this Clause 18.12 is limited so that no obligation of, or transfer by, any U.S. Guarantor under this Clause 18.12 is subject to avoidance and turnover under any fraudulent transfer law.

 

(d)                                 Each U.S. Guarantor represents and warrants to each Finance Party that:

 

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(i)                                    the aggregate amount of its debts (including its obligations under the Finance Documents) is less than the aggregate value (being the lesser of fair valuation and present fair saleable value) of its assets;

 

(ii)                                 its capital is not unreasonably small to carry on its business as it is being conducted;

 

(iii)                              it has not incurred and does not intend to incur debts beyond its ability to pay as they mature; and

 

(iv)                             it has not made a transfer or incurred any obligation under any Finance Document with the intent to hinder, delay or defraud any of its present or future creditors.

 

(e)                                  Each representation and warranty in this Clause 18.12:

 

(i)                                    is made by each U.S. Guarantor on the date of this Agreement;

 

(ii)                                 is deemed to be repeated by:

 

(A)                               each Additional Guarantor on the date that Additional Guarantor becomes a U.S. Guarantor; and

 

(B)                               each U.S. Guarantor on the date of each Utilisation Request and the first day of each Interest Period; and

 

(iii)                               is, when repeated, applied to the circumstances existing at the time of repetition.

 

19.                               REPRESENTATIONS

 

19.1                        Representations

 

The representations and warranties set out in this Clause 19 are made by each Obligor or (if the relevant provision so states) the Company to each Finance Party on the dates set out in Clause 19.18 (Times for making representations).

 

19.2                        Status

 

(a)                                 It is a limited liability company, duly incorporated and validly existing under the law of its jurisdiction of incorporation.

 

(b)                                 It and each of its Material Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

 

19.3                        Binding obligations

 

The obligations expressed to be assumed by it in each Finance Document to which it is a party are, subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered under this Agreement, legal, valid, binding and enforceable obligations.

 

19.4                        Non-conflict with other obligations

 

The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not conflict with:

 

(a)                                 any law or regulation applicable to it;

 

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(b)                                 its or any of its Material Subsidiaries’ constitutional documents; or

 

(c)                                  any agreement or instrument binding upon it or any of its Material Subsidiaries or any of its or any of its Material Subsidiaries’ assets, in each case save to the extent that they could not reasonably be expected to have a Material Adverse Effect.

 

19.5                        Power and authority

 

It has the power to enter into and perform, and has taken all necessary action to authorise its entry into and performance of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.

 

19.6                        Validity and admissibility in evidence

 

All Authorisations required:

 

(a)                                 to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and

 

(b)                                 to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,

 

have been obtained or effected and are in full force and effect.

 

19.7                        Governing law and enforcement

 

(a)                                 Any:

 

(i)                                     irrevocable submission by an Obligor under the Finance Documents to the jurisdiction to which it is stated to be subject; and

 

(ii)                                  agreement by an Obligor as to the governing law of any Finance Document,

 

is legal, valid and binding under the laws of its jurisdiction of incorporation subject to general principles of law specifically referred to in any legal opinion delivered under this Agreement.

 

(b)                                 Any judgment obtained in England in relation to a Finance Document will be recognised and be enforceable by the courts of its jurisdiction of incorporation subject to general principles of law specifically referred to in any legal opinion delivered under this Agreement.

 

19.8                        Deduction of Tax

 

(a)                                 The Company is not required to make any Tax Deduction from any payment it may make under any Finance Document to a Lender which is:

 

(i)                                     a UK Lender:

 

(A)                               falling within paragraph (i)(A) of the definition of UK Lender; or

 

(B)                               except where a Direction has been given under section 931 of the ITA in relation to the payment concerned, falling within paragraph (i)(B) of the definition of UK Lender; or

 

(C)                               falling within paragraph (ii) of the definition of UK Lender or;

 

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(ii)                                  a Treaty Lender and the payment is one specified in a direction given by the Commissioners of Revenue & Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488).

 

(b)                                 The Original Guarantor is not required to make any Tax Deduction from:

 

(i)                                     any payment it may make under any Finance Document to a Lender that has a UK source, which:

 

(A)                               qualifies for an exemption from UK withholding tax under the laws of the UK in respect of that payment; or

 

(B)                               qualifies for full exemption from withholding tax under an applicable double tax treaty between the UK and the jurisdiction of residence of that Lender and the payment is one specified in a direction given by the Commissioners of Revenue & Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488); or

 

(ii)                                  any payment it may make under a Finance Document to a Lender which does not have a UK source.

 

19.9                        No filing or stamp taxes

 

Under the laws of its jurisdiction of incorporation it is not necessary that the Finance Documents be registered, filed, recorded, notarised or enrolled with any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar Taxes or fees be paid on or in relation to them or the transactions contemplated by them.

 

19.10                 No default

 

(a)                                 No Event of Default is continuing or could reasonably be expected to result from its entry into, or its performance of, or any transaction contemplated by, any Finance Document.

 

(b)                                 No other event or circumstance is continuing which constitutes a default under any other agreement or instrument which is binding on it (or any of its Subsidiaries) or to which any of its (or any of its Subsidiaries’) assets are subject to an extent or in a manner which has or is reasonably likely to have a Material Adverse Effect.

 

19.11                 No misleading information

 

(a)                                 Any material written factual information contained in or provided by any member of the Group for the purposes of the Information Memorandum was true and accurate in all material respects taken as a whole as at the date it was provided or as at the date (if any) at which it is stated to be given.

 

(b)                                 Nothing has occurred or been omitted from the Information Memorandum and no information has been given or withheld that results in the information contained in the Information Memorandum taken as a whole being untrue or misleading in any material respect.

 

(c)                                  All other material written factual information provided by any member of the Group (or on its behalf) to a Finance Party was true, accurate and complete in all material respects (taken as a whole) as at the date it was provided or as at the date (if any) at which it is stated to be given and is not misleading in any material respect.

 

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19.12                 Financial statements

 

(a)                                 Its audited financial statements most recently delivered to the Facility Agent (which, at the date of this Agreement, are its Original Financial Statements):

 

(i)                                     were prepared in accordance with GAAP, consistently applied; and

 

(ii)                                  fairly presents its financial condition as at the date to which they were drawn up and operations during the relevant financial year (consolidated, if applicable).

 

(b)                                 There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of the Group, in the case of the Company) since the date to which its Original Financial Statements were drawn up.

 

19.13                 Pari passu ranking

 

Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

 

19.14                 No proceedings pending or threatened

 

No litigation, arbitration or administrative proceedings or investigations of or before any court, arbitral body or agency which are likely to be adversely determined and, if adversely determined, could reasonably be expected to have a Material Adverse Effect has or have (to the best of its knowledge and belief) been started or threatened against it or any of its Subsidiaries.

 

19.15                 Anti-Corruption laws, sanctions and Patriot Act

 

(a)                                 The Company has taken reasonable measures to ensure compliance with Anti-Corruption Laws.

 

(b)                                 None of (i) the Company, any Subsidiary or any of their respective directors, or officers, or (ii) to the actual knowledge of the Company, any agent or employee of the Company or any Subsidiary that will act in any capacity in connection with or benefit from the Facility established under this Agreement, is a Sanctioned Person.

 

(c)                                  No Utilisation, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or Sanctions.

 

(d)                                 The Company and its Subsidiaries are in compliance in all material respects with the Patriot Act.

 

19.16                 Investment Company Act status

 

Neither the Company nor any Subsidiary is an “investment company” required to register as such under the United States Investment Company Act of 1940, as amended, or subject to regulation thereunder.

 

19.17                 Compliance with U.S. regulations

 

No ERISA Events have occurred with respect to any Obligor or any of its ERISA Affiliates, except as would not reasonably be likely to have a Material Adverse Effect.

 

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19.18                 Times for making representations

 

(a)                                 The representations and warranties set out in this Clause 19 are made by each Original Obligor (or, if the relevant provision so states, the Company) on the date of this Agreement.

 

(b)                                 The Repeating Representations are deemed to be made by each Obligor (or, if the relevant provision so states, the Company) by reference to the facts and circumstances then existing on:

 

(i)                                     the date of each Utilisation Request and the first day of each Interest Period; and

 

(ii)                                  in the case of an Additional Guarantor, on the date it becomes (or it is proposed that it becomes) a Guarantor.

 

20.                               INFORMATION UNDERTAKINGS

 

20.1                        Financial statements

 

The Company must supply to the Facility Agent in sufficient copies for all the Lenders:

 

(a)                                 as soon as the same become available, but in any event within 90 days after the end of each of its financial years falling after the Merger Completion Date, its audited consolidated financial statements for that financial year; and

 

(b)                                 as soon as the same become available, but in any event within 45 days after each Quarter Date falling after the Merger Completion Date, its consolidated financial statements for that financial quarter.

 

20.2                        Compliance Certificate

 

(a)                                 The Company must supply to the Facility Agent a duly completed Compliance Certificate with each set of its financial statements delivered to the Facility Agent under this Agreement.

 

(b)                                 A Compliance Certificate must be signed by one authorised signatory of the Company.

 

20.3                        Requirements as to financial statements

 

(a)                                 The Company must ensure that each set of financial statements delivered under this Agreement fairly presents the financial condition (consolidated or otherwise) of the relevant person as at the date to which those financial statements were drawn up.

 

(b)                                 The Company must ensure that each set of financial statements of an Obligor delivered under this Agreement is prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for the Original Guarantor unless, in relation to any set of financial statements, it notifies the Facility Agent that there has been a change in GAAP, the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the relevant Obligor) deliver to the Facility Agent:

 

(i)                                     a full description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods on which the Original Guarantor’s Original Financial Statements were prepared; and

 

(ii)                                  sufficient information, in form and substance as may be reasonably required by the Facility Agent to enable the Finance Parties to make a proper comparison between the financial position shown by the set of financial statements prepared on the changed basis and that

 

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Obligor’s most recent audited financial statements delivered to the Facility Agent under this Agreement.

 

Any reference in this Agreement to those financial statements will be construed as a reference to those financial statements as adjusted to reflect the basis on which the relevant Original Financial Statements were prepared.

 

20.4                        Information — miscellaneous

 

The Company must supply to the Facility Agent (in sufficient copies for all the Lenders if the Facility Agent so requests):

 

(a)                                 copies of all official shareholder notices (including notices of meetings, shareholder resolutions, annual reports, requests to convene a shareholders’ meeting and invitations to appoint proxies) despatched by the Company to its shareholders generally (or any class of them in their capacity as such) or its creditors generally (or any class of them) at the same time as they are despatched;

 

(b)                                 as soon as reasonably practicable on becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group and which are likely to be adversely determined and which could be reasonably expected to, if adversely determined, have a Material Adverse Effect;

 

(c)                                  together with the financial statements delivered in accordance with paragraph (a) of Clause 20.1 (Financial statements), a list of the Material Subsidiaries as at the end of the Company’s most recent financial year; and

 

(d)                                 as soon as reasonably practicable following request, such further information regarding the financial condition, business and operations of any member of the Group as any Finance Party (through the Facility Agent) may reasonably request.

 

20.5                        Notification of Default

 

(a)                                 Each Obligor must notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly on becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).

 

(b)                                 Promptly on request by the Facility Agent, the Company must supply to the Facility Agent a certificate, signed by an authorised signatory on its behalf, certifying that, in so far as they are aware having made all due enquiries, no Default is continuing (or, if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).

 

(c)                                  Any certifications given by any director or senior officers under this Agreement are given without personal liability (other than in the case of fraud, wilful deceit and fraudulent misconduct).

 

20.6                        Use of websites

 

(a)                                 The Company may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the Website Lenders) who accept this method of communication by posting this information onto an electronic website designated by the Company and the Facility Agent (the Designated Website) if:

 

(i)                                     the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

 

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(ii)                                  both the Company and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and

 

(iii)                               the information is in a format previously agreed between the Company and the Facility Agent.

 

If any Lender (a Paper Form Lender) does not agree to the delivery of information electronically, then the Facility Agent must notify the Company accordingly and the Company must supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form.  In any event, the Company must supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.

 

(b)                                 The Facility Agent must supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Company and the Facility Agent.

 

(c)                                  The Company must promptly on becoming aware of its occurrence notify the Facility Agent if:

 

(i)                                     the Designated Website cannot be accessed due to technical failure;

 

(ii)                                  the password specifications for the Designated Website change;

 

(iii)                               any new information which is required to be provided under this Agreement is posted onto the Designated Website;

 

(iv)                              any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

 

(v)                                 the Company becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

 

(d)                                 If the Company notifies the Facility Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Company under this Agreement after the date of that notice must be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

 

(e)                                  Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website.  The Company must comply with any such request within ten Business Days.

 

20.7                        “Know your customer” checks

 

(a)                                 Subject to paragraph (b) below, each Obligor must, promptly on request by any Finance Party, supply, or procure the supply of, any documentation or other evidence reasonably requested by that Finance Party (whether for itself, or on behalf of any other Finance Party or any prospective new Lender) to enable a Finance Party or prospective new Lender to carry out and be satisfied with the results of any “know your customer” checks or other similar checks required under any applicable law or regulation in connection with the transactions contemplated by the Finance Documents.

 

(b)                                 An Obligor is only required to supply any information under paragraph (a) above if the information is not already available to the relevant Finance Party and the requirement arises as a result of:

 

(i)                                     the introduction of, or any change in (or in the interpretation, administration or application of), any law or regulation made after the date of this Agreement;

 

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(ii)                                  any change in the status of an Obligor or any change in the composition of shareholders of an Obligor where a shareholder is not an Obligor, in each case, after the date of this Agreement; or

 

(iii)                               a proposed assignment or transfer by a Lender of any of its rights and/or obligations under any Finance Document to a person that is not a Lender before that assignment or transfer.

 

(c)                                  Each Lender must, promptly on request by the Facility Agent supply, or procure the supply of, any documentation or other evidence reasonably requested by the Facility Agent (for itself) to enable the Facility Agent to carry out and be satisfied with the results of any “know your customer” checks or other similar checks required under any applicable law or regulation in connection with the transactions contemplated by the Finance Documents.

 

21.                               FINANCIAL COVENANTS

 

21.1                        Definitions

 

In this Agreement:

 

Adjusted Consolidated EBITDA means, in relation to a Measurement Period, Consolidated EBITDA for the period adjusted by:

 

(a)                                 including the operating profit before interest, tax, depreciation, amortisation and impairment charges (calculated on a consistent basis with Consolidated EBITDA) (EBITDA) of a member of the Group or attributable to a business or assets acquired during the Measurement Period for that part of the Measurement Period when it was not a member of the Group and/or the business or assets were not owned by a member of the Group; and

 

(b)                                 excluding the EBITDA attributable to any member of the Group or to any business or assets sold during that Measurement Period.

 

Consolidated EBIT means, in relation to a Measurement Period, the aggregate of:

 

(a)                                 the consolidated operating profits of the Group before finance costs and tax for that Measurement Period;

 

(b)                                 plus or minus the Group’s share of the profits or losses of associates for that period (after finance costs and tax) and the Group’s share of the profits or losses of any joint ventures,

 

taking no account of:

 

(i)                                   any Exceptional Items;

 

(ii)                                any unrealised gains or losses on any derivative or financial instrument (unless the derivative instrument is used to hedge an exposure that itself is not excluded from the determination of Consolidated EBIT); and

 

(iii)                             any income or charge attributable to a post-employment benefit scheme other than the current service costs and any past service costs and curtailments and settlements attributable to the scheme.

 

Consolidated EBITDA means, in relation to a Measurement Period, Consolidated EBIT for that Measurement Period after 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.

 

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Consolidated Eligible Cash and Cash Equivalents means, at any time:

 

(a)                                 cash in hand or on deposit with any bank;

 

(b)                                 certificates of deposit, maturing within one year after the relevant date of calculation, issued by a bank;

 

(c)                                  any investment in marketable obligations issued or guaranteed by the government of the United States of America, the UK, any member state of the European Economic Area or any Participating Member State or by an instrumentality or agency of those governments having an equivalent credit rating which:

 

(i)                                   matures within one year after the date of the relevant calculation; and

 

(ii)                                is not convertible to any other security;

 

(d)                                 open market commercial paper not convertible to any other security:

 

(i)                                   for which a recognised trading market exists;

 

(ii)                                issued in the United States of America, the UK or any member of the European Economic Area or any Participating Member State;

 

(iii)                             which matures within one year after the relevant date of calculation; and

 

(iv)                            which has a credit rating of either A-1 or higher by S&P or Fitch or P-1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;

 

(e)                                  sterling bills of exchange eligible for rediscount at the Bank of England and accepted by a bank (or any dematerialised equivalent);

 

(f)                                   investments accessible within 30 days in money market funds which have a credit rating of either A-1 or higher by S&P or Fitch or P-1 or higher by Moody’s; or

 

(g)                                  any other debt, security or investment approved by the Majority Lenders,

 

in each case, to which any member of the Group is beneficially entitled at that time and which is capable of being upstreamed freely to the Company (and excluding, for the avoidance of doubt, any cash or cash equivalents sitting with Consolidated Structured Entities) for the purpose of application against Consolidated Total Borrowings.

 

Consolidated Total Borrowings means, in respect of the Group, at any time, the aggregate of the following liabilities (without double-counting) calculated at the principal amount outstanding (or in the case of any guarantee, indemnity or similar assurance referred to in paragraph (g) below, the maximum liability under the relevant instrument) (excluding any liabilities of Consolidated Structured Entities):

 

(a)                                 any moneys borrowed;

 

(b)                                 any bond, note, debenture, loan stock or other similar instrument;

 

(c)                                  any indebtedness under a Finance Lease;

 

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(d)                                 any moneys owing in connection with the sale or discounting of receivables (except to the extent that there is no recourse);

 

(e)                                  any indebtedness arising from any deferred payment agreements arranged primarily as a method of raising finance or financing the acquisition of an asset;

 

(f)                                   any indebtedness arising in connection with any other transaction (including any forward sale or purchase agreement) which has the commercial effect of a borrowing; and

 

(g)                                  any indebtedness of any person of a type referred to in the above paragraphs which is the subject of a guarantee, indemnity or similar assurance against financial loss given by a member of the Group.

 

Consolidated Total Net Borrowings means at any time Consolidated Total Borrowings less Consolidated Eligible Cash and Cash Equivalents.

 

Exceptional Items means any item of income or expense that represents:

 

(a)                                 any gain or loss arising from:

 

(i)                                     write-downs of inventories to net realisable value or of property, plant and equipment to recoverable amount, and reversals of such write-downs;

 

(ii)                                  restructuring the activities of the Group or any member of the Group and any reversals of any provision for the costs of restructuring (including the cost of integration of any mergers and acquisitions);

 

(iii)                               disposals of items of property, plant or equipment;

 

(iv)                              disposals of investments; or

 

(v)                                 disposals or settlements of liabilities of any member of the Group that fall within the definition of Consolidated Total Borrowings;

 

(b)                                 any gain or loss of a highly unusual or non-recurring nature;

 

(c)                                  fair value changes and finance charges on contingent deferred consideration on business combinations or long-term remuneration plans recognised as part of a business combination; or

 

(d)                                 any gain or loss arising from a transaction entered into otherwise than in the carrying on of the normal core business operations of the Group.

 

Measurement Period means a period of 12 Months ending on each Quarter Date.

 

Quarter Date means 31 March, 30 June, 30 September and 31 December in each calendar year.

 

21.2                        Interpretation

 

(a)                                 Except as provided to the contrary in this Agreement, an accounting term used in this Clause 21 is to be construed in accordance with the principles applied in connection with the Original Guarantor’s Original Financial Statements.

 

(b)                                 Any amount in a currency other than USD is to be taken into account at its USD equivalent calculated on the basis of:

 

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(i)                                     the Facility Agent’s spot rate of exchange for the purchase of the relevant currency in the London foreign exchange market with USD at or about 11:00 a.m. on the day the relevant amount falls to be calculated; or

 

(ii)                                  if the amount is to be calculated on the last day of a financial period of the Company, the relevant rates of exchange used by the Company in, or in connection with, its financial statements for that period.

 

(c)                                  No item may be credited or deducted more than once in any calculation under this Clause 21.

 

21.3                        Leverage

 

(a)                                 The Company must ensure that Consolidated Total Net Borrowings do not, at the end of each Measurement Period ending on or after the later of (a) the Merger Completion Date and (b) 30 September 2017, exceed 3.0 times Adjusted Consolidated EBITDA for that Measurement Period.

 

(b)                                 For the purpose of this Clause 21.3, for each of the Measurement Periods ending on a date which is less than 12 months after the Merger Completion Date, Adjusted Consolidated EBITDA shall be calculated by reference to the amount of Adjusted Consolidated EBITDA as disclosed in the financial statements and/or Compliance Certificates for the Quarter Periods ending after the Merger Completion Date, annualised on a straight line basis.

 

(c)                                  For the avoidance of doubt, there shall be no breach of the financial covenant described in paragraph (a) above where Adjusted Consolidated EBITDA is a negative figure in respect of a Measurement Period and where Consolidated Total Net Borrowings are also equal to or less than zero at the end of that Measurement Period.

 

22.                               GENERAL UNDERTAKINGS

 

22.1                        General

 

Each Obligor agrees to be bound by the undertakings set out in this Clause 22 relating to it and, where an undertaking is expressed to apply to other members of the Group, each Obligor must ensure that its relevant Subsidiaries perform that undertaking, provided that for the purposes of this Clause 22, the Group shall not include any Consolidated Structured Entities.

 

22.2                        Authorisations

 

Each Obligor must promptly:

 

(a)                                 obtain, comply with and do all that is necessary to maintain in full force and effect; and

 

(b)                                 upon request by the Facility Agent, supply certified copies to the Facility Agent of,

 

any Authorisation required under any applicable law or regulation to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document.

 

22.3                        Compliance with laws

 

Each Obligor must comply in all respects with all laws to which it may be subject, if failure to comply would materially impair its ability to perform its obligations under the Finance Documents.

 

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22.4                        Pari passu ranking

 

Each Obligor must ensure that its payment obligations under the Finance Documents at all times rank at least pari passu with the claims of all its unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

 

22.5                        Negative pledge

 

(a)                                 In this Clause 22.5, Quasi-Security Interest means an arrangement or transaction described in paragraph (c) below.

 

(b)                                 Except as provided below, no member of the Group may create or allow to exist any Security Interest over any of its assets.

 

(c)                                  Except as provided below, no member of the Group may:

 

(i)                                     sell, transfer or otherwise dispose of any of its assets to a person which is not a member of the Group on terms where they are or may be leased to, re-acquired or acquired by a member of the Group;

 

(ii)                                  sell, transfer or otherwise dispose of any of its receivables on recourse terms;

 

(iii)                               enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or

 

(iv)                              enter into any other preferential arrangement having a similar effect,

 

in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.

 

(d)                                 Paragraphs (b) and (c) above do not apply to any Security Interest or Quasi-Security Interest listed below:

 

(i)                                     any Security Interest or Quasi-Security Interest listed in Schedule 11 (Existing Security) except to the extent the principal amount secured by that Security Interest or Quasi-Security Interest exceeds the amount stated in that Schedule;

 

(ii)                                  any cash-management, netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements;

 

(iii)                               any payment or close-out netting or set-off arrangement pursuant to any hedging transaction entered into by a member of the Group for the purpose of:

 

(A)                               hedging any risk to which any member of the Group is exposed in its ordinary course of trading; or

 

(B)                               its interest rate or currency management operations which are carried out in the ordinary course of business and for non-speculative purposes only,

 

excluding, in each case, any Security Interest or Quasi-Security Interest under a credit support arrangement in relation to a hedging transaction;

 

(iv)                              any lien arising by operation of law or in the ordinary course of trading;

 

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(v)                                 any Security Interest or Quasi-Security Interest over or affecting any asset acquired by a member of the Group after the date of this Agreement if:

 

(A)                               the Security Interest or Quasi-Security Interest was not created in contemplation of, or since, the acquisition of that asset by a member of the Group;

 

(B)                               the principal amount secured has not been increased in contemplation of, or since, the acquisition of that asset by a member of the Group; and

 

(C)                               the Security Interest or Quasi-Security Interest is removed or discharged as soon as commercially reasonable following the relevant acquisition and in any event within six Months of the date of acquisition of that asset;

 

(vi)                              any Security Interest or Quasi-Security Interest over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Security Interest or Quasi-Security Interest is created before the date on which that company becomes a member of the Group, if:

 

(A)                               the Security Interest or Quasi-Security Interest was not created in contemplation of the acquisition of that company;

 

(B)                               the principal amount secured has not increased in contemplation of or since the acquisition of that company; and

 

(C)                               the Security Interest or Quasi-Security Interest is removed or discharged as soon as commercially reasonable following the relevant acquisition and in any event within six Months of that company becoming a member of the Group;

 

(vii)                           any Security Interest or Quasi-Security Interest entered into pursuant to any Finance Document;

 

(viii)                        any Security Interest or Quasi-Security Interest arising as a result of a disposal which is permitted pursuant to paragraph (b) of Clause 22.6;

 

(ix)                              any Security Interest or Quasi-Security Interest arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of trading and on the supplier’s standard or usual terms and not arising as a result of any default or omission by any member of the Group; or

 

(x)                                 any Security Interest securing or Quasi-Security Interest relating to indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of a Security Interest or Quasi-Security Interest given by any member of the Group other than any permitted under paragraphs (i) to (viii) above) does not exceed USD40,000,000 or its equivalent in another currency or currencies at any time.

 

22.6                        Disposals

 

(a)                                 Except as provided below, no member of the Group will, either in a single transaction or in a series of transactions (whether related or not), dispose of any asset.

 

(b)                                 Paragraph (a) above does not apply to any disposal:

 

(i)                                     made in the ordinary course of trading of the disposing entity;

 

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(ii)                                  of any assets by a member of the Group (other than the Company) to another member of the Group;

 

(iii)                               of assets in exchange for other assets comparable or superior as to type, value and quality;

 

(iv)                              of assets which are obsolete, redundant or no longer required for the Company or relevant member of the Group’s business or operations;

 

(v)                                 arising as a result of any Security Interest or Quasi-Security Interest permitted in accordance with paragraph (d) of Clause 22.5;

 

(vi)                              required by law or regulation or any order of any governmental entity, provided that this does not result in an Event of Default;

 

(vii)                           of tax assets or losses payable by the Company or any member of the Group to any member of the Group;

 

(viii)                        arising in connection with the making of a lawful distribution;

 

(ix)                              of cash for any purpose not prohibited by any Finance Document;

 

(x)                                 with the consent of the Majority Lenders; or

 

(xi)                              of assets where the higher of the market value or consideration receivable (when aggregated with the higher of the market value or consideration receivable for any other disposal not allowed under the preceding paragraphs) does not exceed an amount representing 10% or more of the total assets of the Company (or its equivalent in another currency or currencies) in any financial year of the Company.

 

22.7                        Restriction on Subsidiary Financial Indebtedness

 

(a)                                 Except as provided below, no member of the Group other than an Obligor may incur or permit to be outstanding any Financial Indebtedness.

 

(b)                                 Paragraph (a) above does not apply to:

 

(i)                                     any Financial Indebtedness incurred under the Finance Documents;

 

(ii)                                  any Financial Indebtedness owed by a member of the Group to another member of the Group;

 

(iii)                               any derivative transaction protecting against or benefiting from fluctuations in any rate or price entered into in the ordinary course of business (but excluding transactions that are entered into for purely speculative purposes);

 

(iv)                              any Financial Indebtedness incurred under intra-day facilities for dealer accounts held by any member of the Group;

 

(v)                                 any Financial Indebtedness of the Original Guarantor represented by the 2025 Senior Notes or the Senior Convertible Notes; or

 

(vi)                              other Financial Indebtedness which in aggregate does not exceed USD60,000,000 or its equivalent in another currency or currencies at any time.

 

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22.8                        Mergers

 

(a)                                 No member of the Group may enter into any amalgamation, demerger, merger or corporate reconstruction.

 

(b)                                 Paragraph (a) above does not apply to the Merger, merger or corporate reconstruction between members of the Group or any disposal permitted pursuant to Clause 22.6 (Disposals).

 

22.9                        Change of business

 

The Company must ensure that no substantial change is made to the general nature of the business of the Company or the Group from that carried on at the Merger Completion Date.

 

22.10                 Restriction of dividends

 

Except as required by law or regulation, no member of the Group shall make or enter into any contractual arrangement which would have the result of restricting the payment of dividends from any member of the Group to another member of the Group.

 

22.11                 Anti-Corruption Laws and Sanctions

 

(a)                                 The Company will take reasonable measures to ensure compliance by it and its Subsidiaries with Anti-Corruption Laws and applicable Sanctions.

 

(b)                                 The Company will not request any Loan, and the Company shall not use, and shall ensure that its Subsidiaries shall not use, the proceeds of any Loan (A) in violation of any Anti-Corruption Laws in any material respect, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto in any material respect.

 

22.12                 U.S. laws

 

(a)                                 In this Clause 22.12:

 

Margin Regulations means Regulations U and X issued by the Board of Governors of the United States Federal Reserve System.

 

Margin Stock means “margin stock” as defined in Regulation U of the Margin Regulations.

 

(b)                                 No Obligor may:

 

(i)                                     extend credit for the purpose, directly or indirectly, of buying or carrying Margin Stock; or

 

(ii)                                  use any Loan, directly or indirectly, to buy or carry Margin Stock or for any other purpose in violation of the Margin Regulations.

 

(c)                                  Each Obligor must promptly upon becoming aware of it notify the Facility Agent of the occurrence of an ERISA Event that, individually or when aggregated with all other ERISA Events, would have or would reasonably be expected to have a Material Adverse Effect.

 

(d)                                 An Obligor shall use commercially reasonable efforts to not allow, or permit any of its ERISA Affiliates to allow, any ERISA Event to occur with respect to any Employee Plan to the extent that any ERISA Event, individually or when aggregated with all other ERISA Events, would have a Material Adverse Effect.

 

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23.                               EVENTS OF DEFAULT

 

23.1                        Events of Default

 

Each of the events or circumstances set out in this Clause 23 is an Event of Default (other than Clause 23.17 (Acceleration)).

 

23.2                        Non-payment

 

An Obligor does not pay on the due date any amount payable pursuant to a Finance Document in the manner and at the place and in the currency in which it is expressed to be payable, unless:

 

(a)                                 its failure to pay is caused by:

 

(i)                                     administrative or technical error; or

 

(ii)                                  a Disruption Event; and

 

(b)                                 payment is made within five Business Days of its due date.

 

23.3                        Financial covenants

 

Any requirement of Clause 21 (Financial covenants) is not satisfied.

 

23.4                        Other obligations

 

(a)                                 An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 23.2 (Non-payment) or Clause 23.3 (Financial covenants)).

 

(b)                                 No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 21 Business Days of the earlier of (i) the Facility Agent giving notice to the Company of the failure to comply and (ii) any Obligor becoming aware of the failure to comply.

 

23.5                        Misrepresentation

 

Any representation, warranty or statement made or deemed to be made by an Obligor in the Finance Documents or in any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made, unless the circumstances giving rise to the misrepresentation, breach of warranty or misstatement:

 

(a)                                 are capable of remedy; and

 

(b)                                 are remedied within 21 Business Days of the earlier of the Facility Agent giving notice of the misrepresentation, breach of warranty or misstatement to the Company and any Obligor becoming aware of the misrepresentation, breach of warranty or misstatement.

 

23.6                        Cross-default

 

(a)                                 Any of the following occurs in respect of any Obligor or any Material Subsidiary:

 

(i)                                     any of its Financial Indebtedness is not paid when due (after the expiry of any originally applicable grace period and the obligation to pay is not being disputed in good faith);

 

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(ii)                                  any of its Financial Indebtedness is validly declared to be or otherwise becomes due and payable before its specified maturity as a result of an event of default (however described); or

 

(iii)                               any of its creditors becomes entitled to declare any of its Financial Indebtedness due and payable before its specified maturity as a result of any event of default (however described).

 

(b)                                 No Event of Default will occur under paragraph (a) above if:

 

(i)                                     the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within all or any of paragraphs (a)(i) to (a)(iii) above is less than USD25,000,000 (or its equivalent in any other currency or currencies); or

 

(ii)                                  the Financial Indebtedness is intra-Group debt.

 

23.7                        Insolvency

 

(a)                                 Any Obligor or any Material Subsidiary:

 

(i)                                     is unable or admits inability to pay its debts as they fall due;

 

(ii)                                  is deemed or is declared for the purposes of any applicable law to be unable to pay its debts as they fall due;

 

(iii)                               suspends making payments on any of its debts; or

 

(iv)                              by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Finance Party in its capacity as such) with a view to rescheduling any of its indebtedness.

 

(b)                                 A moratorium is declared in respect of any indebtedness of any Obligor or any Material Subsidiary.

 

23.8                        Insolvency proceedings

 

(a)                                 Except as provided below, any corporate action, legal proceedings or other formal procedure or step is taken in relation to:

 

(i)                                     the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor or any Material Subsidiary other than a solvent liquidation or reorganisation of any Material Subsidiary;

 

(ii)                                  a composition, compromise, assignment or arrangement with any creditor of any Obligor or any Material Subsidiary;

 

(iii)                               the appointment of a liquidator (other than in respect of a solvent liquidation), receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any other Obligor or any Material Subsidiary or any material part of its assets;

 

(iv)                              enforcement of any Security Interest over any material part of the assets of any Obligor or any Material Subsidiary; or

 

(v)                                 any analogous procedure or step is taken in any jurisdiction.

 

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(b)                                 Paragraph (a) above does not apply to a petition for winding-up presented by a creditor which is frivolous or vexatious or which is being contested in good faith and with due diligence, and, in each case, is discharged, stayed or dismissed within 30 days of commencement.

 

23.9                        Creditors’ process

 

Any expropriation, attachment, sequestration, distress, execution or analogous event affects any asset or assets of any Obligor or any Material Subsidiary having an aggregate value of USD25,000,000 and is not discharged within 30 days of commencement.

 

23.10                 Cessation of business

 

Any Obligor or any Material Subsidiary ceases, or threatens to cease, to carry on business except as a result of any disposal allowed under this Agreement or (in the case of a Material Subsidiary only) where such business or part of its business is transferred to, or assumed by, another member of the Group.

 

23.11                 Ownership of the Obligors

 

After the Merger Completion Date, an Obligor (other than the Company) is not or ceases to be a wholly-owned Subsidiary of the Company.

 

23.12                 Unlawfulness

 

(a)                                 It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents.

 

(b)                                 Any Finance Document is not effective in accordance with its terms or is alleged by an Obligor to be ineffective in accordance with its terms for any reason.

 

23.13                 Repudiation

 

An Obligor repudiates a Finance Document or evidences an intention to repudiate a Finance Document.

 

23.14                 Material adverse change

 

Any event or series of events occurs which has or could reasonably be expected to have a Material Adverse Effect.

 

23.15                 Employee Plans

 

Any ERISA Event shall have occurred and the liability of any Obligor or its ERISA Affiliates, individually or when aggregated with all other ERISA Events, would have or would be reasonably expected to have a Material Adverse Effect.

 

23.16                 United States Bankruptcy Laws

 

(a)                                 In this Clause 23.16:

 

U.S. Bankruptcy Law means the United States Bankruptcy Code or any other United States Federal or State bankruptcy, insolvency or similar law.

 

(b)                                 Any of the following occurs in respect of a U.S. Debtor

 

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(i)                                   it makes a general assignment for the benefit of creditors;

 

(ii)                                it commences a voluntary case or proceeding under any U.S. Bankruptcy Law; or

 

(iii)                             an involuntary case under any U.S. Bankruptcy Law is commenced against it and is not controverted within 30 days or is not dismissed or stayed within 60 days after commencement of the case; or

 

(iv)                            an order for relief or other order approving any case or proceeding is entered under any U.S. Bankruptcy Law.

 

23.17                 Acceleration

 

(a)                                 If an Event of Default is continuing, the Facility Agent may, and must if so instructed by the Majority Lenders, by notice to the Company:

 

(i)                                   cancel all or part of the Total Commitments;

 

(ii)                                declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable; and/or

 

(iii)                             declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be payable on demand by the Facility Agent acting on the instructions of the Majority Lenders,

 

and any such notice will take effect in accordance with its terms.

 

(b)                                 If an Event of Default described in Clause 23.16 (United States Bankruptcy Laws) 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.

 

24.                               CHANGES TO THE LENDERS

 

24.1                        Assignments and transfers by the Lenders

 

Subject to the other provisions of this Clause 24, a Lender (the Existing Lender) may:

 

(a)                                 assign any of its rights; or

 

(b)                                 transfer by novation any of its rights and obligations,

 

under the Finance Documents to another bank or financial institution (the New Lender).

 

24.2                        Conditions of assignment or transfer

 

(a)                                 The prior written consent of the Company is required for an assignment or transfer unless the assignment or transfer is:

 

(i)                                     to another Lender or an Affiliate of a Lender (subject to paragraph (c)(ii) below); or

 

(ii)                                  effected at a time when an Event of Default is continuing.

 

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