0001374310
false
0001374310
2023-06-29
2023-06-29
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
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):
June 29, 2023
Cboe Global Markets, Inc.
(Exact name of registrant as specified in
its charter)
Delaware
(State or other jurisdiction of incorporation)
001-34774 |
20-5446972 |
(Commission File Number) |
(IRS Employer Identification No.) |
433 West Van Buren Street
Chicago, Illinois 60607
(Address and Zip Code of Principal Executive
Offices)
Registrant's telephone number, including
area code (312) 786-5600
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:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class: |
|
Trading
Symbol |
|
Name of each exchange on which registered: |
Common
Stock, par value of $0.01 per share |
|
CBOE |
|
CboeBZX |
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 ¨
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. ¨
Item 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On June 29, 2023, Cboe Global Markets, Inc. (the “Company”),
as guarantor, entered into an Amendment and Restatement Agreement (the “A&R Agreement”) with Cboe Clear Europe N.V. (formerly
known as European Central Counterparty N.V., “Cboe Clear Europe”), as borrower, Bank of America Europe Designated Activity
Company, as co-ordinator and facility agent, and Citibank N.A., London Branch, as security agent, in order to amend and restate the Cboe
Clear Europe credit facility, originally dated as of July 1, 2020, by and among the same parties (as previously amended and restated by
way of an amendment and restatement agreement dated July 1, 2021 and June 30, 2022, respectively, and, as further amended and restated,
the “Facility Agreement”).
The A&R Agreement makes certain changes to the Facility Agreement,
including without limitation, the following:
| · | Extended the term of the Facility Agreement until June 28, 2024; |
| · | Maintained the aggregate commitment under the Facility Agreement at Euro 1.25 billion; |
| · | Maintained the aggregate commitment under the Facility Agreement, after the accordion increase, at Euro 1.75 billion; and |
| · | Modified certain other provisions to incorporate updates in applicable laws and regulations. |
The Company’s obligations under the Facility Agreement shall
continue in full force and effect as set forth in the A&R Agreement.
Certain of the lenders under the Facility Agreement and their affiliates
(1) have provided, and may in the future provide, investment banking, underwriting, trust or other advisory or commercial services to
the Company and its subsidiaries and affiliates or (2) are the Company's and its subsidiaries’ and affiliates’ customers,
including trading permit holders, trading privilege holders, participants or members, and may engage in trading activities on Company
markets.
The foregoing description does not purport to be complete and is qualified
in its entirety by reference to the A&R Agreement which is filed to this Current Report on Form 8-K as Exhibit 10.1 and 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 in Item 1.01 of this Current Report on Form 8-K
is incorporated by reference into this Item 2.03.
Item 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(d) Exhibits.
Exhibit Number |
Description |
10.1 |
Amendment and Restatement Agreement, dated June 29, 2023, by and among Cboe Clear Europe N.V., as borrower, Cboe Global Markets, Inc., as guarantor, Bank of America Europe Designated Activity Company, as co-ordinator and facility agent, and Citibank N.A., London Branch, as security agent, relating to a Facility Agreement originally dated July 1, 2020, by and among the same parties (as previously amended and restated by way of an amendment and restatement agreement dated July 1, 2021 and June 30, 2022, respectively, and further amended and restated). |
|
|
104 |
Cover Page Interactive Data File (the cover page XBRL tags are embedded in the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
CBOE GLOBAL MARKETS, INC. |
|
|
|
By: |
/s/ Jill Griebenow |
|
|
Jill Griebenow
Senior Vice President and Chief Accounting Officer |
|
|
|
Dated: July 5, 2023 |
Exhibit 10.1
EXECUTION VERSION
AMENDMENT AND RESTATEMENT AGREEMENT
relating to a facility agreement originally dated 1 July 2020, as amended and restated on 1 July 2021 and 30 June 2022. |
|
|
Dated 29 June
2023 |
for
CBOE CLEAR EUROPE N.V.
with
CBOE GLOBAL MARKETS, INC.
as the Guarantor
with
BANK OF AMERICA EUROPE DAC
acting as Co-ordinator and Facility
Agent
and
CITIBANK N.A., LONDON BRANCH
acting as Security Agent
Ref: L-336868 |
CONTENTS
CLAUSE |
|
PAGE |
|
|
|
1. |
Definitions and interpretation |
1 |
2. |
Conditions precedent |
3 |
3. |
Representations |
4 |
4. |
Amendment |
4 |
5. |
Reduction and increase of Commitments |
4 |
6. |
Security, guarantee and security confirmation |
5 |
7. |
Transaction expenses |
6 |
8. |
Fees |
6 |
9. |
Security Agent instructions |
6 |
10. |
Miscellaneous |
6 |
11. |
Governing law |
7 |
12. |
Enforcement |
7 |
THE SCHEDULES
SCHEDULE |
PAGE |
|
|
Schedule 1 The Parties |
10 |
Schedule 2 Conditions precedent |
14 |
Schedule 3 Form of Amended Agreement |
17 |
THIS AGREEMENT
is dated 29 June 2023 and made between:
| (1) | CBOE CLEAR
EUROPE N.V. (formerly European Central Counterparty N.V.), a public company with limited
liability (naamloze vennootschap), incorporated under the laws of the Netherlands,
having its corporate seat (statutaire zetel) in Amsterdam, the Netherlands, registered
with the trade register (handelsregister) of the Dutch chamber of commerce (Kamer
van Koophandel) under number 34268194 (the "Company"); |
| (2) | CBOE GLOBAL
MARKETS, INC., a corporation incorporated under the laws of the State of Delaware, United
States of America (the "Guarantor"); |
| (3) | BANK OF AMERICA
EUROPE DAC as co-ordinator (the "Co-ordinator"); |
| (4) | THE ENTITIES listed in Part I of
Schedule 1 (The Parties) as continuing bookrunner mandated lead arrangers (the "Continuing
Bookrunner Mandated Lead Arrangers"), the acceding bookrunner mandated lead arranger
(the “Acceding Bookrunner Mandated Lead Arranger”), and the outgoing mandated
lead arranger (the "Outgoing Mandated Lead Arranger") (whether acting individually
or together, together with the Co-ordinator, the "Arrangers"); |
| (5) | THE FINANCIAL
INSTITUTIONS listed in Part II of Schedule 1 (The Parties) as revolving lenders
(the "Revolving Lenders") and swingline lenders (the "Swingline
Lenders"); |
| (6) | The FINANCIAL
INSTITUTIONS listed in Part III of Schedule 1 (The Parties) as designated entities
(the "Designated Entities"); |
| (7) | BANK OF AMERICA
EUROPE DAC as facility agent of the other Finance Parties (the "Facility Agent"); |
| (8) | BANK OF AMERICA,
N.A. as agent of the other Finance Parties in relation to Swingline Loans denominated in
U.S. dollars (the "U.S. Dollar Swingline Agent"); |
| (9) | BANK OF AMERICA
EUROPE DAC as agent of the other Finance Parties in relation to Swingline Loans denominated
in euro or sterling (the "€/£ Swingline Agent") and in relation
to Swingline Loans denominated in Swiss Francs (the "Swiss Francs Swingline Agent"); |
| (10) | NORDEA DANMARK,
FILIAL AF NORDEA BANK ABP, FINLAND as agent of the other Finance Parties in relation to Swingline
Loans denominated in Danish Krone, Norwegian Krone or Swedish Krona (the "Danish
Krone/Norwegian Krone/Swedish Krona Swingline Agent"); |
| (11) | SKANDINAVISKA
ENSKILDA BANKEN AB (PUBL) as agent in relation to Swingline Facility C Loans which are denominated
in Swedish Krona (the "Facility C Swingline Agent"); and |
| (12) | CITIBANK
N.A., LONDON BRANCH (the "Security Agent"). |
IT IS AGREED as
follows:
| 1. | Definitions
and interpretation |
In this
Agreement:
"Amended
Agreement" means the Original Facility Agreement, as amended and restated in the form set out in Schedule 3 (Form of
Amended Agreement).
"Amendment
Effective Date" means the date of the notification by the Facility Agent under Clause 2 (Conditions precedent).
"CGM
Group” has the meaning given to that term in the Amended Agreement.
“Collateral
Monitoring Deed” means a collateral monitoring deed originally dated 1 July 2020, as amended and restated from time to
time prior to the date of this Agreement, between the Company, the Security Agent, the Custodians and Collateral Monitor.
"Collateral
Monitoring Deed ARA" means an amendment and restatement deed dated on or about the date of this Agreement between the Company,
the Security Agent, the Custodians and Collateral Monitor in relation to the Collateral Monitoring Deed.
“Commitment”
has the meaning given to that term in the Original Facility Agreement immediately prior to the Amendment Effective Date.
“Existing
Commitment Amount” means, in relation to a Continuing Lender, the amount of the Commitment of that Continuing Lender under
the Original Facility Agreement immediately prior to the Amendment Effective Date.
“Increased
Amount” means the amount by which a Lender’s New Commitment Amount is greater than its Existing Commitment Amount.
"Latest
Financial Statements" means:
| (a) | in relation
to the Company, the audited consolidated financial statements of the Group for the financial
year ended 31 December 2022; and |
| (b) | in relation
to the Guarantor, its audited consolidated financial statements for its financial year ended
31 December 2022. |
“New
Commitment Amount” means the “Commitment” of each Lender as defined in the Amended Agreement.
"Original
Facility Agreement" means the EUR1,500,000,000 facility agreement originally dated 1 July 2020, as amended and restated
by way of an amendment and restatement agreement dated 1 July 2021 and an amendment and restatement agreement dated 30 June 2022,
between the Company, the Guarantor, the Co-ordinator, the Arranger (as defined therein), the U.S. Dollar Swingline Agent, the €/£
Swingline Agent, the Swiss Francs Swingline Agent, the Facility Agent, the Danish Krone/ Norwegian Krone/ Swedish Krona Swingline Agent,
the Security Agent and the Lenders named therein.
"Original
Security Agreements" means each of:
| (a) | the English
law governed security agreement dated 1 July 2020 between the Company and the Security
Agent; |
| (b) | the supplemental
English law governed security document dated 1 July 2021 between the Company and the
Security Agent; |
| (c) | the supplemental
English law governed security document dated 30 June 2022 between the Company and the
Security Agent; |
| (d) | the Irish
law governed security agreement dated 1 July 2020 between the Company and the Security
Agent; |
| (e) | the supplemental
Irish law governed security document dated 1 July 2021 between the Company and the Security
Agent; |
| (f) | the supplemental
Irish law governed security document dated 30 June 2022 between the Company and the
Security Agent; and |
| (g) | the Swedish
law governed security agreement dated 1 July 2020 between the Company and the Security
Agent. |
"Party"
means a party to this Agreement.
“Reducing
Lender” means a Lender whose New Commitment Amount is less than its Existing Commitment Amount.
"Supplemental
Security Agreement" means each of:
| (a) | the English
law governed supplemental security agreement dated on or about the date of this Agreement
between the Company and the Security Agent (the "English Supplemental Security Agreement");
and |
| (b) | the Irish
law governed supplemental security agreement dated on or about the date of this Agreement
between the Company and the Security Agent (the "Irish Supplemental Security Agreement"). |
| 1.2 | Incorporation
of defined terms |
| (a) | Unless a
contrary indication appears, terms defined in the Original Facility Agreement have the same
meaning in this Agreement. |
| (b) | The principles
of construction set out in the Original Facility Agreement shall have effect as if set out
in this Agreement. |
A person
who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term
of this Agreement.
In accordance
with the Original Facility Agreement, each of the Company and the Facility Agent designate this Agreement as a Finance Document.
The provisions
of Clause 4 (Amendment) shall be effective only if the Facility Agent has received all the documents and other evidence listed
in Schedule 2 (Conditions precedent) in form and substance satisfactory to the Facility Agent. The Facility Agent shall notify
the Company, the Arrangers (as defined in the Amended Agreement) and the Security Agent promptly upon being so satisfied.
| 3.1 | Representations
of the Company and the Guarantor on the date of this Agreement |
On the
date of this Agreement, the Company makes the representations and warranties set out in clause 20 (Representations of the Company)
(save for paragraphs (a) to (d) of clause 20.10 (No misleading information)) and the Guarantor makes the representations
and warranties set out in clause 21 (Representations of the Guarantor) (save for clause 21.9 (No misleading information))
of the Original Facility Agreement, in each case, by reference to the facts and circumstances then existing on the date of this Agreement,
but as if references in clauses 20 (Representations of the Company) and 21 (Representations of the Guarantor) of the Original
Facility Agreement to (i) "the Finance Documents" were instead to this Agreement; (ii) the “Original Financial
Statements” were instead to the Latest Financial Statements; and (iii) the “Cboe Group” were instead to the CGM
Group.
| 3.2 | Representations
of the Company and the Guarantor on the Amendment Effective Date |
On the
Amendment Effective Date, the Company makes the representations and warranties set out in clause 20 (Representations of the Company)
(save for paragraphs (a) to (d) of clause 20.10 (No misleading information)) and the Guarantor makes the representations
and warranties set out in clause 21 (Representations of the Guarantor) (save for clause 21.9 (No misleading information))
of the Amended Facility Agreement, in each case, by reference to the facts and circumstances then existing on the Amendment Effective
Date, but as if references in clauses 20 (Representations of the Company) and 21 (Representations of the Guarantor) of
the Original Facility Agreement to "the Finance Documents" were instead to this Agreement and the Amended Agreement.
With
effect from the Amendment Effective Date the Original Facility Agreement shall be amended and restated in the form set out in Schedule
3 (Form of Amended Agreement).
| 4.2 | Continuing
obligations |
The provisions
of the Original Facility Agreement and the other Finance Documents (including the guarantee and indemnity of the Guarantor) shall, save
as amended by this Agreement, continue in full force and effect.
| 5. | Reduction
AND INCREASE of Commitments |
| 5.1 | Subject to
the other provisions of this Agreement, on the Amendment Effective Date: |
| (a) | the Commitment
of each Reducing Lender shall be reduced to an amount equal to its New Commitment Amount;
and |
| (b) | in accordance
with clause 5.2 below, each Lender in relation to its Increased Amount shall continue as
a Lender under the Amended Agreement with a commitment in an amount equal to its New Commitment
Amount. |
| 5.2 | Subject to
the other provisions of this Agreement, on and from the Amendment Effective Date: |
| (a) | in relation
to any Increased Amount, each Obligor and the relevant Lender shall assume obligations towards
one another and/or acquire rights against one another as that Obligor and that Lender would
have assumed and/or acquired had that Lender been an Original Lender with commitments equal
to the New Commitment Amount; |
| (b) | each Lender
and each of the other Finance Parties shall assume obligations towards one another and acquire
rights against one another as those Lenders and those Finance Parties would have assumed
and/or acquired had those Lenders been Original Lenders with commitments equal to their New
Commitment Amounts; and |
| (c) | the Commitments
of the Lenders (other than in relation to the Increased Amounts) shall continue in full force
and effect except, in respect of a Reducing Lender, to the extent reduced pursuant to Clause
5.1. |
| 5.3 | Each Lender
confirms (for the avoidance of doubt) that, in relation to the Increased Amount, 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 relation to and in accordance with
the Amended Agreement on or prior to the Amendment Effective Date. |
| 6. | Security,
guarantee and security confirmation |
| (a) | Each Obligor
confirms, with effect from (and including) the Amendment Effective Date: |
| (i) | its acceptance
of the terms of the Amended Agreement; |
| (ii) | that it
is bound as an Obligor by the terms of the Amended Agreement; |
| (iii) | that
the guarantees and indemnities set out in Clause 19 (Guarantee and Indemnity) of the
Original Facility Agreement shall: |
| (A) | continue
in full force and effect on the terms of the Amended Agreement; and |
| (B) | extend
to all obligations of each Obligor under each of the Finance Documents (including the Amended
Agreement), |
in each
case, subject to the limitations set out in any Finance Document.
| (b) | The Company
expressly confirms, acknowledges and agrees that with effect from (and including) the Amendment
Effective Date: |
| (i) | any Security
created by it under each Original Security Agreement extends to the obligations of the Obligors
under the Finance Documents without any further action (including, without limitation, the
Amended Agreement and any new obligations and liabilities owed at any time by any Obligor
to any of the Secured Parties under the Finance Documents), subject to any limitations set
out in the Original Security Agreements; |
| (ii) | the obligations
of the Obligors arising under the Amended Agreement are included in the Secured Liabilities,
subject to any limitations set out in the Original Security Agreements; and |
| (iii) | the Security
created under each Original Security Agreement continues in full force and effect pursuant
to the terms of the respective Original Security Agreement. |
| (c) | No part of
this Agreement will create, creates, or is intended to create, a registrable Security. |
The Company
shall within five Business Days of written request (accompanied by a breakdown showing in reasonable detail the costs incurred) reimburse
the Facility Agent, the Security Agent and the Co-ordinator for the amount of all costs and expenses (including legal fees) reasonably
incurred by the Facility Agent, the Security Agent or the Co-ordinator, as applicable, in connection with the negotiation, preparation,
printing and execution of this Agreement and any other documents referred to in this Agreement.
| (a) | The Company
shall pay to the Facility Agent (for the account of each Arranger) a fee in the amount and
at the time agreed in a Fee Letter. |
| (b) | The Company
shall pay to the Facility Agent, the U.S. Dollar Swingline Agent, the €/£ Swingline
Agent and the Swiss Francs Swingline Agent (for their own account) a fee in the amount and
at the time agreed in a Fee Letter. |
| (c) | The Company
shall pay to the Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent (for its own
account) a fee in the amount and at the time agreed in a Fee Letter. |
| (d) | In this clause
8, defined terms have the meaning given to them in the Amended Facility Agreement. |
| 9. | SECURITY
Agent instructions |
In accordance
with clause 28.3 (Instructions) of the Original Facility Agreement, the Lenders (as defined in the Original Facility Agreement),
hereby instruct the Security Agent to execute and enter into this Agreement, the Supplemental Security Agreements, the Collateral Monitoring
Deed ARA and any other related documents or agreements contemplated by this Agreement.
| 10.1 | Incorporation
of terms |
The provision
of clause 34 (Notices) of the Original Facility Agreement shall be incorporated into this Agreement as if set out in full in this
Agreement and as if references in those clauses to "this Agreement" are references to this Agreement.
This
Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on
a single copy of this Agreement.
For the
purposes of clause 34.2 (Addresses) of the Original Facility Agreement, the address (and the department or officer, if any, for
whose attention the communication is to be made) for the Parties shall be that identified with its name below. These administrative details
shall apply from
the date of this Agreement and the Parties agree that the five Business Days’ notice set out in clause 34.2 (Addresses)
of the Original Facility Agreement shall be deemed to have been given.
This
Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
| (a) | The courts
of England have exclusive jurisdiction to settle any dispute arising out of or in connection
with this Agreement (including a dispute relating to the existence, validity or termination
of this Agreement or any non-contractual obligation arising out of or in connection with
this Agreement) (a "Dispute"). |
| (b) | The Parties
agree that the courts of England are the most appropriate and convenient courts to settle
Disputes and accordingly no Party will argue to the contrary. |
| (c) | Notwithstanding
paragraph (a) above, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions. |
Without
prejudice to any other mode of service allowed under any relevant law:
| (a) | the Company
irrevocably appoints Cboe Clear Europe N.V. (ATTN: Legal & Compliance Department)
of The Monument Building, 11 Monument Street, 5th floor, London, EC3R 8AF, United
Kingdom, as its agent for service of process in relation to any proceedings before the English
courts in connection with any Finance Document; |
| (b) | the Guarantor
irrevocably appoints Cboe Worldwide Holdings Limited (ATTN: Karl Spielmann, Company Secretary)
of The Monument Building, 11 Monument Street, London, EC3R 8AF, United Kingdom, as its agent
for service of process in relation to any proceedings before the English courts in connection
with any Finance Document; and |
| (c) | each of
the Company and the Guarantor agrees that failure by a process agent to notify the Company
or Guarantor, as applicable, of the process will not invalidate the proceedings concerned. |
Each
Lender hereby notifies each Obligor that, pursuant to the requirements of the USA Patriot Act, such Lender is required to obtain, verify
and record information that identifies such Obligor, which information includes the name and address of such Obligor and other information
that will allow such Lender to identify such Obligor in accordance with the USA Patriot Act.
Each
Party hereby waives any right it may have to a jury trial in respect of any litigation directly or indirectly arising out of, under or
in connection with this Agreement or any of the other Finance Documents or any dealings between the Parties relating to the subject matter
of this Agreement or the Lender/Company/Guarantor relationship. Each Party hereby acknowledges that this waiver
is a material inducement
to enter into a business relationship, it has relied on this waiver in entering into this Agreement and it will continue to rely on this
waiver in related future dealings. Each Party hereby further warrants and represents that it has reviewed this waiver with its legal
counsel and it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. This waiver is irrevocable
and may not be modified other than by a written waiver specifically referring to this Clause 12.4 and executed by each of the Parties.
In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.
To the
extent that the Finance Documents provide support, through a guarantee or otherwise, for any Hedging Agreement or any other agreement
or instrument that is a QFC (such support, "QFC Credit Support", and each such QFC, a "Supported QFC"),
the Parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under
the Federal Deposit Insurance Act and Title II of the Dodd-Frank Act (together with the regulations promulgated thereunder, the "U.S.
Special Resolution Regimes") in respect of such Supported QFC and QFC Credit Support:
| (a) | In the
event a Covered Entity that is party to a Supported QFC (each, a "Covered Party")
becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such
Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation
in or under such Supported QFC and such QFC Credit Support, and any rights in property securing
such Supported QFC or such QFC Credit Support) from such Covered Party will be effective
to the same extent as the transfer would be effective under the U.S. Special Resolution Regime
if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights
in property) were governed by the laws of the United States or a state of the United States.
In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to
a proceeding under a U.S. Special Resolution Regime, Default Rights under the Finance Documents
that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised
against such Covered Party are permitted to be exercised to no greater extent than such Default
Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and
the Finance Documents were governed by the laws of the United States or a state of the United
States. Without limitation of the foregoing, it is understood and agreed that rights and
remedies of the parties with respect to a Defaulting Lender shall in no event affect the
rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. |
| (b) | As used
in this Clause 12.5, the following terms have the following meanings: |
"BHC
Act Affiliate" of a party means an "affiliate" (as such term is defined under, and interpreted in accordance with,
12 U.S.C. 1841(k)) of such party.
"Covered
Entity" means any of the following:
| (i) | a "covered
entity" as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
252.82(b); |
| (ii) | a "covered
bank" as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
47.3(b); or |
| (iii) | a "covered
FSI" as that term is defined in, and interpreted in accordance with, 12 C.F.R. §
382.2(b). |
"Default
Right" has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
"QFC"
has the meaning assigned to the term "qualified financial contract" in, and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
This Agreement
has been entered into on the date stated at the beginning of this Agreement.
Schedule
1
The Parties
Part I
A. Continuing
Bookrunner Mandated Lead Arrangers
|
1. |
Bank
of America Europe DAC |
|
|
|
|
2. |
Bank
of China Limited, London Branch |
|
|
|
|
3. |
Barclays
Bank PLC |
|
|
|
|
4. |
Citibank,
N.A., London Branch |
|
|
|
|
5. |
Deutsche
Bank Luxembourg S.A. |
|
|
|
|
6. |
Goldman
Sachs Bank USA |
|
|
|
|
7. |
Industrial
and Commercial Bank of China Limited London Branch |
|
|
|
|
8. |
Lloyds
Bank Plc |
|
|
|
|
9. |
Nordea
Danmark, Filial af Nordea Bank Abp, Finland |
|
|
|
|
10. |
Royal
Bank of Canada |
|
|
|
|
11. |
The
Toronto-Dominion Bank, London Branch |
|
|
|
|
12. |
Commerzbank
AG |
|
|
|
|
13. |
Wells
Fargo Bank International Unlimited Company |
|
|
|
|
14. |
JP
Morgan SE |
B. Acceding Bookrunner
Mandated Lead Arranger
Skandinaviska
Enskilda Banken AB (publ)
C. Outgoing Mandated
Lead Arranger
Skandinaviska Enskilda
Banken AB (publ)
Part II
A. Revolving
Lenders
|
1. |
Bank
of America Europe DAC |
|
|
|
|
2. |
Bank
of China Limited, London Branch |
|
1. |
Barclays
Bank PLC |
|
|
|
|
2. |
Citibank
Europe PLC |
|
|
|
|
3. |
Deutsche
Bank Luxembourg S.A. |
|
|
|
|
4. |
Goldman
Sachs Bank USA |
|
|
|
|
5. |
Industrial
and Commercial Bank of China Limited London Branch |
|
|
|
|
6. |
JPMorgan
Chase Bank, N.A., London Branch |
|
|
|
|
7. |
Nordea
Danmark, Filial af Nordea Bank Abp, Finland |
|
|
|
|
8. |
Royal
Bank of Canada |
|
|
|
|
9. |
The
Toronto-Dominion Bank, London Branch |
|
|
|
|
10. |
Commerzbank
AG |
|
|
|
|
11. |
Lloyds
Bank Plc |
|
|
|
|
12. |
Skandinaviska
Enskilda Banken AB (publ) |
|
|
|
|
13. |
Wells
Fargo Bank International Unlimited Company |
C. Swingline
Lenders
|
1. |
Bank
of America Europe DAC |
|
|
|
|
1. |
Bank
of China Limited, London Branch |
|
|
|
|
2. |
Barclays
Bank PLC |
|
|
|
|
3. |
Citibank
Europe PLC |
|
|
|
|
4. |
Deutsche
Bank Luxembourg S.A. |
|
|
|
|
5. |
Goldman
Sachs Bank USA |
|
|
|
|
6. |
Industrial
and Commercial Bank of China Limited London Branch |
|
|
|
|
7. |
JPMorgan
Chase Bank, N.A., London Branch |
|
|
|
|
8. |
Nordea
Danmark, filial af Nordea Bank Abp, Finland |
|
|
|
|
9. |
Royal
Bank of Canada |
|
|
|
|
10. |
The
Toronto-Dominion Bank, London Branch |
|
|
|
|
11. |
Commerzbank
AG |
|
|
|
|
12. |
Lloyds
Bank Plc |
|
|
|
|
13. |
Skandinaviska
Enskilda Banken AB (publ) |
|
14. |
Wells
Fargo Bank International Unlimited Company |
Part III
Designated Entities
|
1. |
Bank
of America, N.A. (as a Designated Entity for USD drawdowns in respect of Swingline Facility J only) |
|
|
|
|
2. |
Citibank
N.A. (as a Designated Entity for USD drawdowns in respect of Swingline Facility J only) |
Schedule
2
Conditions precedent
| (a) | A copy of
the constitutional documents of each Obligor or a certificate of an authorised signatory
confirming that the constitutional documents previously delivered to the Facility Agent for
the purposes of the Original Facility Agreement have not been amended and remain in full
force and effect. |
| (b) | A copy of
a resolution of the board of directors of each Obligor: |
| (i) | approving
the terms of, and the transactions contemplated by this Agreement, any Supplemental Security
Agreement, any Fee Letter and the other documents referred to in this Schedule 2 to which
it is a party and resolving that it execute, deliver and perform this Agreement, any Supplemental
Security Agreement, any Fee Letter and the other documents referred to in this Schedule 2
to which it is a party; |
| (ii) | authorising
a specified person or persons to execute this Agreement, any Supplemental Security Agreement,
any Fee Letter and the other documents referred to in this Schedule 2 to which it is a party;
and |
| (iii) | authorising
a specified person or persons, on its behalf, to sign and/or despatch all documents and notices
(including, if relevant, any Utilisation Request) to be signed and/or despatched by it under
or in connection with this Agreement, any Supplemental Security Agreement, any Fee Letter
and the other documents referred to in this Schedule 2 to which it is a party. |
| (c) | A specimen
of the signature of each person authorised by the resolution referred to in paragraph (b) above. |
| (d) | A certificate
of each Obligor (signed by a director or, in the case of the Guarantor only, by an executive
officer) confirming that borrowing or guaranteeing or securing, as appropriate, the Total
Commitments would not cause any borrowing, guaranteeing, security or similar limit binding
on that Obligor to be exceeded. |
| (e) | A certificate
of an authorised signatory of the relevant Obligor certifying that each copy document relating
to it specified in this Schedule 2 is correct, complete and in full force and effect and
has not been amended or superseded as at a date no earlier than the date of this Agreement. |
| (f) | In respect
of the Company: |
| (i) | an up-to-date
extract from the Dutch trade register (handelsregister) relating to it dated no earlier
than five Business Days prior to the date of this Agreement; |
| (ii) | if applicable,
a copy of a resolution of its board of supervisory directors approving the execution of,
and the terms of, and the transactions contemplated by, the Finance Documents; and |
| (iii) | if applicable,
a completed form MR01 in respect of the English Supplemental Security Agreement and a completed
CRO registration template in agreed form for the Irish Supplemental Security Agreement. |
| (g) | In respect
of the Guarantor, a certificate as to the existence and good standing of the Guarantor from
the appropriate governmental authorities in the Guarantor's jurisdiction of organisation,
in form and substance reasonably satisfactory to the Facility Agent and its counsel. |
| (h) | Evidence
that the Company is recognised as a Qualifying Central Counterparty by the DNB and the AFM
under EMIR and the Dutch Financial Supervision Act. |
| (a) | A copy of
each Supplemental Security Agreement, duly executed by the Parties to it. |
| (b) | A copy of
the Collateral Monitoring Deed ARA, duly executed by the Parties to it (and the amended and
restated form of the Collateral Monitoring Deed attached thereto). |
| (c) | An account
control letter to the Custodians, signed by the Company and acknowledged by each Custodian,
as required by the Collateral Monitoring Deed. |
| (d) | A Collateral
Schedule, in accordance with Part I of Schedule 6 (Borrowing Base) of the Original
Facility Agreement. |
| (a) | A legal opinion
of Linklaters LLP, legal advisers to the Arrangers and the Facility Agent in England, substantially
in the form distributed to the Original Lenders prior to signing this Agreement. |
| (b) | A capacity
legal opinion of Linklaters LLP, legal advisers to the Arrangers and the Facility Agent in
the Netherlands, substantially in the form distributed to the Original Lenders prior to signing
this Agreement. |
| (c) | An enforceability
legal opinion of Arthur Cox LLP, legal advisers to the Arrangers, the Facility Agent and
the Security Agent in Ireland, substantially in the form distributed to the Original Lenders
prior to signing this Agreement. |
| (d) | A capacity
legal opinion of Sidley Austin LLP, legal advisers to the Guarantor in the State of Delaware,
substantially in the form distributed to the Original Lenders prior to signing this Agreement. |
| 4. | Other documents
and evidence |
| (a) | A copy of
the Rules and a certificate of an authorised signatory of the Company confirming that
the copy of the Rules have not been amended and remain in full force and effect. |
| (b) | A certified
copy of the form of Clearing Participant’s Agreement and security deed or a certificate
of an authorised signatory of the Company confirming that the copy of the form of Clearing
Participant’s Agreement and security deed previously delivered to the Facility Agent
for the purposes of the Original Facility Agreement have not been amended and remain in full
force and effect. |
| (c) | Evidence
that any process agent referred to in Clause 12.2 (Service of process) has accepted
its appointment. |
| (d) | A copy of
any other Authorisation or other document, opinion or assurance which the Facility Agent,
Security Agent or Lenders consider to be reasonably necessary or desirable (if they have
notified the Company accordingly prior to the date of this Agreement) in connection with
the entry into and performance of the transactions contemplated by this Agreement or for
the validity and enforceability of this Agreement and any other Finance Document. |
| (e) | A copy of
the Latest Financial Statements. |
| (f) | Evidence
that the fees, costs and expenses then due from the Company pursuant to Clause 7 (Transaction
expenses) and Clause 8 (Fees) have been paid or will be paid at the times and
in the manner set out in the relevant Fee Letters. |
| (g) | Evidence
of a positive advice of any works council which has advisory rights in respect of the entry
into and performance of the transactions contemplated in the Finance Documents. |
Schedule
3
Form of Amended Agreement
EXECUTION
VERSION
FACILITY AGREEMENT
originally dated
1 July 2020, as amended and restated on 1 July 2021, 30 June 2022 and most recently on the 2023 Amendment and Restatement
Effective Date
for
CBOE CLEAR EUROPE
N.V.
as the Company
with
CBOE GLOBAL MARKETS, INC.
as the Guarantor
and
BANK
OF AMERICA Europe DAC, BANK OF CHINA LIMITED, LONDON BRANCH, BARCLAYS BANK PLC, CITIbank, n.a., london branch, COMMERZBANK AG, DEUTSCHE
BANK LUXEMBOURG S.A., GOLDMAN SACHS BANK USA, INDUSTRIAL AND COMMERCIAL BANK OF CHINA LIMITED LONDON BRANCH, J.P. MORGAN SE, LLOYDS
BANK PLC, NORDEA DANMARK, FILIAL AF NORDEA BANK ABP, FINLAND, ROYAL BANK OF CANADA, SKANDNAVISKA ENSKILDA BANKEN AB (publ), THE TORONTO-DOMINION
BANK, LONDON BRANCH, WELLS FARGO BANK INTERNATIONAL UNLIMITED COMPANY
as Arrangers
and
BANK
OF AMERICA Europe DAC
as Co-ordinator
and
BANK
OF AMERICA Europe DAC
acting as Facility
Agent
and
CITIBANK N.A.,
LONDON BRANCH
acting as Security
Agent
Ref: L-336868/EC/JP
Linklaters LLP
CONTENTS
CLAUSE |
|
PAGE |
|
SECTION 1 |
|
|
INTERPRETATION |
|
1. |
Definitions and interpretation |
2 |
|
SECTION 2 |
|
|
THE FACILITY |
|
2. |
The Facility |
47 |
3. |
Purpose |
54 |
4. |
Conditions of Utilisation |
55 |
|
SECTION 3 |
|
|
UTILISATION |
|
5. |
Utilisation – Revolving Loans |
58 |
6. |
Utilisation – Swingline Loans |
59 |
7. |
Optional Currencies |
67 |
|
SECTION 4 |
|
|
REPAYMENT, PREPAYMENT AND CANCELLATION |
|
8. |
Repayment |
69 |
9. |
Prepayment and cancellation |
70 |
|
SECTION 5 |
|
|
COSTS OF UTILISATION |
|
10. |
Interest |
75 |
11. |
Interest Periods |
77 |
12. |
Changes to the calculation of interest |
78 |
13. |
Fees |
80 |
|
SECTION 6 |
|
|
ADDITIONAL PAYMENT OBLIGATIONS |
|
14. |
Tax gross-up and indemnities |
82 |
15. |
Increased costs |
87 |
16. |
Other indemnities |
90 |
17. |
Mitigation by the Lenders |
93 |
18. |
Costs and expenses |
93 |
|
SECTION 7 |
|
|
GUARANTEE |
|
19. |
Guarantee and indemnity |
95 |
|
SECTION 8 |
|
|
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT |
|
20. |
Representations of the Company |
98 |
21. |
Representations of the Guarantor |
104 |
22. |
Information undertakings |
107 |
23. |
Company general undertakings |
111 |
24. |
Guarantor general undertakings |
117 |
25. |
Events of Default |
119 |
|
SECTION 9 |
|
|
CHANGES TO PARTIES |
|
26. |
Changes to the Lenders |
123 |
27. |
Changes to the Obligors |
128 |
|
SECTION 10 |
|
|
FINANCE PARTIES |
|
28. |
Role of the Agents, the Security Agent and the Arranger |
129 |
29. |
Application of Proceeds |
143 |
30. |
Conduct of business by the Secured Parties |
145 |
31. |
Sharing among the Finance Parties |
145 |
|
SECTION 11 |
|
|
ADMINISTRATION |
|
32. |
Payment mechanics |
147 |
33. |
Set-off |
152 |
34. |
Notices |
152 |
35. |
Calculations and certificates |
154 |
36. |
Partial invalidity |
155 |
37. |
Remedies and waivers |
155 |
38. |
Amendments and waivers |
155 |
39. |
Confidential Information |
159 |
40. |
Confidentiality of Funding Rates |
163 |
41. |
Counterparts |
164 |
42. |
Contractual Recognition of Bail-In |
164 |
|
SECTION 12 |
|
|
GOVERNING LAW AND ENFORCEMENT |
|
43. |
Governing law |
165 |
44. |
Enforcement |
165 |
THE SCHEDULES
SCHEDULE |
PAGE |
Schedule 1 The Original Lenders |
168 |
Schedule 2 Conditions precedent to initial utilisation |
174 |
Schedule 3 Requests |
176 |
Schedule 4 Form of Transfer Certificate |
179 |
Schedule 5 Form of Assignment Agreement |
181 |
Schedule 6 Borrowing Base |
184 |
Schedule 7 Form of Compliance Certificate |
201 |
Schedule 8 Timetables |
202 |
Schedule 9 Form of Increase Confirmation |
213 |
Schedule 10 Form of Accordion Increase Request |
215 |
Schedule 11 Form of Accordion Increase Confirmation |
217 |
Schedule 12 Designated Entities |
220 |
Schedule 13 Term Rate Terms |
222 |
Schedule 14 RFR Terms |
232 |
Schedule 15 Daily Non-Cumulative Compounded RFR Rate |
241 |
THIS AGREEMENT is originally dated 1
July 2020, as amended and restated on 1 July 2021 and 30 June 2022 and further amended and restated on the 2023 Amendment
and Restatement Effective Date and made between:
(1) | CBOE CLEAR EUROPE N.V. (formerly European
Central Counterparty N.V.), a public company with limited liability (naamloze vennootschap),
incorporated under the laws of the Netherlands, having its corporate seat (statutaire
zetel) in Amsterdam, the Netherlands, registered with the trade register (handelsregister)
of the Dutch chamber of commerce (Kamer van Koophandel) under number 34268194 (the
"Company"); |
(2) | CBOE GLOBAL MARKETS, INC., a corporation
incorporated under the laws of the State of Delaware, United States of America (the "Guarantor"); |
(3) | BANK OF AMERICA EUROPE DAC as co-ordinator
(the "Co-ordinator"); |
(4) | BANK OF AMERICA EUROPE DAC and BANK OF
CHINA LIMITED, LONDON BRANCH, BARCLAYS BANK PLC, CITIBANK, N.A., LONDON BRANCH, COMMERZBANK
AG, DEUTSCHE BANK LUXEMBOURG S.A., GOLDMAN SACHS BANK USA, INDUSTRIAL AND COMMERCIAL
BANK OF CHINA LIMITED LONDON BRANCH, J.P. MORGAN SE, LLOYDS BANK PLC, NORDEA DANMARK, FILIAL
AF NORDEA BANK ABP, FINLAND, ROYAL BANK OF CANADA, THE TORONTO-DOMINION BANK, LONDON BRANCH,
WELLS FARGO BANK INTERNATIONAL UNLIMITED COMPANY and SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
as bookrunner mandated lead arrangers (the "Bookrunner Mandated Lead Arrangers")
(the Bookrunner Mandated Lead Arrangers and the Co-ordinator each an "Arranger"); |
(5) | THE FINANCIAL INSTITUTIONS listed in
Part I of Schedule 1 (The Original Lenders) and the FINANCIAL INSTITUTIONS listed
in Part II of Schedule 1 (The Original Lenders) as lenders; |
(6) | BANK OF AMERICA EUROPE DAC as agent of
the other Finance Parties (the "Facility Agent"); |
(7) | BANK OF AMERICA, N.A. as agent of the
other Finance Parties in relation to Swingline Loans denominated in U.S. dollars (the "U.S.
Dollar Swingline Agent"); |
(8) | BANK OF AMERICA EUROPE DAC as agent of
the other Finance Parties in relation to Swingline Loans denominated in euro or sterling
(the "€/£ Swingline Agent") and in relation to Swingline Loans
denominated in Swiss Francs (the "Swiss Francs Swingline Agent"); |
(9) | NORDEA DANMARK, FILIAL AF NORDEA BANK
ABP, FINLAND as agent of the other Finance Parties in relation to Swingline Loans denominated
in Danish Krone, Norwegian Krone, or Swedish Krona (the "Danish Krone/Norwegian
Krone/Swedish Krona Swingline Agent"); |
(10) | CITIBANK N.A., LONDON BRANCH as security
agent for the Secured Parties (the "Security Agent"); and |
(11) | SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
as agent in relation to Swingline Facility C Loans which are denominated in Swedish Krona
(the “Swingline Facility C Nordic Loans”) (the “Facility C Swingline
Agent”). |
IT IS
AGREED as follows:
SECTION 1
INTERPRETATION
1. | Definitions
and interpretation |
In this Agreement:
"2023 Amendment and
Restatement Agreement" means an amendment and restatement agreement dated __29 June___ 2023 between among others, the
Company and the Facility Agent, pursuant to which this Agreement is amended and restated.
"2023 Amendment and
Restatement Effective Date" has the meaning given to the term "Amendment Effective Date" in the 2023 Amendment and
Restatement Agreement.
"€STR"
means, in relation to any day:
| (a) | the
applicable euro short-term rate administered by the European Central Bank (or any other person
which takes over the administration of that rate) displayed (before any correction, recalculation
or republication by the administrator) on page €STR of the Refinitiv screen (or
any replacement Refinitiv page which displays that rate); or |
| (b) | as
otherwise determined pursuant to Clause 12.4
(Interest calculation if no Swingline Rate – Swingline Loans), |
and if, in either case, that
rate is less than zero, €STR shall be deemed to be zero.
"Acceptable Bank"
means a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of BBB+
or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or Baa1 or higher by Moody's Investors Services Limited
or a comparable rating from an internationally recognised credit rating agency.
"Acceptable Bonds"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Acceptable Currency"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Accordion Increase
Amount" means, in respect of an Accordion Increase Request, the amount of the increase in the Revolving Facility Commitments
requested in that Accordion Increase Request.
"Accordion Increase
Confirmation" means a confirmation substantially in the form set out in Schedule 11 (Form of Accordion Increase Confirmation).
"Accordion Increase
Date" has the meaning given to it in paragraph (d) of Clause 2.3 (Increase – Accordion Option).
"Accordion Increase
Lender" has the meaning given to it in paragraph (b)(ii) of Clause 2.3 (Increase – Accordion Option).
"Accordion Increase
Request" means a request substantially in the form set out in Schedule 10 (Form of Accordion Increase Request).
"Additional Business
Day" means any day specified as such in the applicable Reference Rate Terms.
"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.
"AFM" means
the Netherlands Authority for the Financial Markets.
"Agent" means
the Facility Agent, the U.S. Dollar Swingline Agent, the €/£ Swingline Agent, the Swiss Francs Swingline Agent, the Danish
Krone/Norwegian Krone/Swedish Krona Swingline Agent or (in relation to the Swingline Facility C Nordic Loans only) the Facility C Swingline
Agent.
"Alternative Term
Rate" means any rate specified as such in Schedule 13 (Term Rate Terms).
"Alternative Term
Rate Adjustment" means any rate which is either:
| (a) | specified as such in Schedule 13 (Term
Rate Terms); or |
| (b) | determined by the Facility Agent (or
by any other Finance Party which agrees to determine that rate in place of the Facility Agent)
in accordance with the methodology specified in Schedule 13 (Term Rate Terms). |
"Article 55 BRRD"
means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment
firms.
"Appointing Lender"
has the meaning given to it in paragraph (a) of Clause 2.5 (Designated Entities).
"Assignment Agreement"
means an agreement substantially in the form set out in Schedule
5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor, the assignee and the Facility Agent.
"Authorisation"
means an authorisation, permission, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
"Availability Period"
means:
| (a) | in relation to Revolving Facility A,
Revolving Facility B, Revolving Facility C, Revolving Facility D, Revolving Facility E, Revolving
Facility F, Revolving Facility G, Revolving Facility H, Revolving Facility I and Revolving
Facility J the period from and including 1 July 2020 to and including the Termination
Date; and |
| (b) | in relation to Swingline Facility A,
Swingline Facility B, Swingline Facility C, Swingline Facility D, Swingline Facility E, Swingline
Facility F, Swingline Facility G, Swingline Facility H, Swingline Facility I and Swingline
Facility J, the period from and including 1 July 2020 to and including the Termination
Date. |
"Available Commitment"
means:
| (a) | in
relation to a Revolving Facility (and without limiting Clause 6.5
(Relationship with a Revolving Facility)), a Lender's Revolving Facility Commitment
under that Revolving Facility minus: |
| (i) | the
Base Currency Amount of its participation in any outstanding Revolving Loans under that Revolving
Facility; and |
| (ii) | in
relation to any proposed Utilisation under a Revolving Facility, the Base Currency Amount
of its participation in any Revolving Loans that are due to be made under that Revolving
Facility on or before the proposed Utilisation Date, |
other than, in relation to any
proposed Utilisation under a Revolving Facility, that Lender's participation in any Revolving Loans that are due to be repaid or prepaid
under that Revolving Facility on or before the proposed Utilisation Date; and
| (b) | in
relation to each Swingline Facility (and without limiting Clause 6.5 (Relationship with
a Revolving Facility)), a Lender's Swingline Commitment under that Swingline Facility
minus: |
| (i) | the
Base Currency Amount of its participation in any outstanding Swingline Loans under that Swingline
Facility; and |
| (ii) | in
relation to any proposed Utilisation under a Swingline Facility, the Base Currency Amount
of its participation in any Swingline Loans that are due to be made under that Swingline
Facility on or before the proposed Utilisation Date, |
other than, in relation to any
proposed Utilisation under a Swingline Facility, that Lender's participation in any Swingline Loans that are due to be repaid or prepaid
under that Swingline Facility on or before the proposed Utilisation Date.
"Available Facility"
means, in relation to a Facility, the aggregate for the time being of each Lender's Available Commitment in respect of that Facility.
"Available Swingline
Facility" means, in relation to a Swingline Facility, the aggregate for the time being of each Swingline Lender's Available
Commitment under that Swingline Facility.
"Bail-In Action"
means the exercise of any Write-down and Conversion Powers.
"Bail-In Legislation"
means:
| (a) | in
relation to an EEA Member Country which has implemented, or which at any time implements,
Article 55 BRRD, the relevant implementing law or regulation as described in the EU
Bail-In Legislation Schedule from time to time; |
| (b) | in
relation to an EEA Member Country, Regulation (EU) No 2021/23 of 16 December 2020 on
a framework for the recovery and resolution of central counterparties, as amended from time
to time; |
| (c) | in
relation to the United Kingdom, the UK Bail-In Legislation; and |
| (c) | in relation to any state other than
such an EEA Member Country and the United Kingdom, any analogous law or regulation from time
to time which requires contractual recognition of any Write-down and Conversion Powers contained
in that law or regulation. |
"Base Currency"
or "€" means euro.
"Base Currency Amount"
means, in relation to a Loan, the amount specified in the Utilisation Request delivered by the Company for that Loan (or, if the amount
requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Facility 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 (or, in the
case of a Swingline Loan, the relevant Swingline Agent) receives the Utilisation Request) adjusted to reflect any repayment or prepayment
of the Loan.
"Benchmark Rate"
means:
| (a) | in
relation to any Loan in a Nordic Currency or a Euro Revolving Loan: |
| (i) | the
applicable Primary Term Rate as of the applicable Specified Time for the currency of that
Loan and for a period equal in length to the Interest Period of that Loan; or |
| (ii) | as
otherwise determined pursuant to Clause 12.1 (Interest calculation if no Primary Term
Rate – Revolving Loans) or, other than in relation to a Euro Revolving Loan, Clause
12.4 (Interest calculation if no Swingline Rate – Swingline Loans), |
| (b) | in
relation to a U.S. Dollar Swingline Loan: |
| (A) | the prime commercial lending rate in
U.S. dollars announced by the U.S. Dollar Swingline Agent at the Specified Time and in force
on that day; and |
| (B) | 0.50 per cent. per annum over the rate
per annum determined by the U.S. Swingline Agent to be the Federal Funds Rate (as published
by the Federal Reserve Bank of New York) for that day; or |
| (ii) | as
otherwise determined pursuant Clause 12.4 (Interest calculation if no Swingline Rate –
Swingline Loans), |
and if, in either case, that
rate is less than zero, the Benchmark Rate shall be deemed to be zero.
"Beneficial Ownership
Regulation" means 31 C.F.R. § 1010.230, with the C.F.R. being the U.S. Code of Federal Regulations.
"Board" means
the Board of Governors of the Federal Reserve System of the United States (or any successor thereto).
"Break Costs"
means:
| (a) | subject to paragraph (b) below,
the amount (if any) by which: |
| (i) | the interest 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:
| (ii) | 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; and |
| (b) | in relation to any RFR Loan, any amount
specified as such in the applicable RFR Terms. |
"Business Day"
means a day (other than a Saturday or Sunday) on which banks are open for general business in London and New York and:
| (a) | (in relation to any date for payment
or purchase of a currency other than euro or a Nordic Currency) the principal financial centre
of the country of that currency; |
| (b) | (in relation to any date for payment
or purchase of euro) which is a TARGET Day; |
| (c) | (in relation to any date for payment
or purchase of (or the fixing of an interest rate in relation to) a Nordic Currency) Stockholm
and any day specified as such in respect of that currency in Schedule 13 (Term Rate Terms);
and |
| (i) | the
fixing of an interest rate in relation to a Term Rate Revolving Loan; |
| (ii) | any
date for payment or purchase of an amount relating to an RFR Loan; or |
| (iii) | the
determination of the first day or the last day of an Interest Period for an RFR Loan, or
otherwise in relation to the determination of the length of such an Interest Period), |
which
is an Additional Business Day relating to that Loan or Unpaid Sum.
"Central Bank Rate"
has the meaning given to that term in the applicable RFR Terms.
"Central Bank Rate
Adjustment" has the meaning given to that term in the applicable RFR Terms.
"CGM Group"
means the Guarantor and its Subsidiaries for the time being, excluding Cboe Digital Holdings, Inc. and Cboe Canada Holdings ULC
and any of their respective Subsidiaries.
"CGM Merger Event"
means any amalgamation, demerger or merger (however so described) of the Guarantor, provided that a CGM Merger Event shall not occur
if:
| (a) | no Event of Default has occurred as
a result of any such amalgamation, demerger or merger (however so described) and is continuing; |
| (b) | the Guarantor is the surviving legal
entity following any such amalgamation, demerger or merger (however so described); and |
| (c) | any such amalgamation, demerger or
merger (however so described) does not affect the validity or enforceability of any of the
Guarantor’s obligations under any Finance Document. |
"CIBOR" means,
in relation to any Loan in Danish Krone:
| (a) | the
applicable Primary Term Rate as of the applicable Specified Time for Danish Krone and for
a period equal in length to the Interest Period of that Loan; or |
| (a) | as
otherwise determined pursuant to Clause 12.1
(Interest calculation if no Primary Term Rate – Revolving Loans) or Clause 12.4
(Interest calculation if no Swingline Rate – Swingline Loans), and |
if, in either case, that rate
is less than zero, CIBOR shall be deemed to be zero.
"Clearing Fund"
has the meaning given to it in the Clearing Rule Book.
"Clearing Participant"
means a person recognised as such by the Company pursuant to and in accordance with the Rules.
"Clearing Participant
Agreement" means the written agreement entered into between the Company and a Clearing Participant pursuant to the Rules.
"Clearing Regulations"
has the meaning given to "Regulations" in the Clearing Rule Book.
"Clearing Rule Book"
means the Clearing Rule Book of the Company dated 18 January 2023 as may be amended, supplemented or modified from time to
time.
"Clearing System"
means the Company’s Clearing System as defined in the Rules.
"Code" means
the U.S. Internal Revenue Code of 1986.
"Collateral"
means the Eligible Collateral which from time to time is, or is expressed to be, the subject of the Transaction Security in accordance
with paragraph 2 (Collateral) of Part I of Schedule 6 (Borrowing Base).
"Collateral Accounts"
means each of the Collateral Cash Accounts or the Collateral Securities Accounts.
"Collateral Cash Accounts"
means each of the following cash accounts: account number 0012751003, 0012751011, 0012759071, 0012751038 and 0012759098 held in the name
of the Company with Citibank N.A., London Branch, account number 0032860214, 0032860028 and 0032860036 held in the name of the Company
with Citibank Europe plc, Dublin and account number 90401852468 held in the name of the Company with Citibank Europe plc, Sweden Branch
pursuant to the Custody Agreement.
"Collateral Monitor"
means Citibank N.A., New York Offices or any successor collateral monitor which may be appointed in accordance with the terms of the
Collateral Monitoring Deed.
"Collateral Monitoring
Deed" means the Collateral Monitoring Deed originally dated 1 July 2020 between the Company, the Security Agent and the
Custodians and Collateral Monitor, as amended and restated from time to time and most recently on or about the date of the 2023 Amendment
and Restatement Agreement.
"Collateral Report"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Collateral Schedule"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Collateral Securities
Accounts" means each of the following securities accounts: account number 7012759001 and 6012751003 held in the name of the
Company with Citibank N.A., London Branch, account number 0328600001, 1007389 and 6148293178 held in the name of the Company with Citibank
Europe plc, Dublin and account number 1022461 held in the name of the Company with Citibank Europe plc, Sweden Branch pursuant to the
Custody Agreement.
"Collateral Value"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Commitment"
means a Revolving Facility A Commitment, a Revolving Facility B Commitment, a Revolving Facility C Commitment, a Revolving Facility D
Commitment, a Revolving Facility E Commitment, a Revolving Facility F Commitment, a Revolving Facility G Commitment, a Revolving Facility
H Commitment, a Revolving Facility I Commitment, a Revolving Facility J Commitment, a Swingline Facility A Commitment, a Swingline Facility
B Commitment, a Swingline Facility C Commitment, a Swingline Facility D Commitment, a Swingline Facility E Commitment, a Swingline Facility
F Commitment, a Swingline Faciliy G Commitment, a Swingline Facility H Commitment, a Swingline Facility I Commitment or a Swingline Facility
J Commitment.
"Company Repeating
Representations" means each of the representations set out in Clauses 20.1 (Status) to 20.6 (Governing law and enforcement),
paragraph (a) of Clause 20.9 (No Default), paragraph (e) of Clause 20.10 (No misleading information), Clauses
20.12 (Pari passu ranking) to 20.14 (No proceedings), Clause 20.16 (Clearing Participant Agreements), Clause 20.22
(Sanctions and anti-corruption) and Clause 20.23 (Margin regulations).
"Compliance Certificate"
means a certificate substantially in the form set out in Schedule
7 (Form of Compliance Certificate).
"Compounding Methodology
Supplement" means, in relation to the Daily Non-Cumulative Compounded RFR Rate, a document which:
| (a) | is
agreed in writing by the Company, the Facility Agent (in its own capacity) and the Facility
Agent (acting on the instructions of the Majority Lenders); |
| (b) | specifies
a calculation methodology for that rate; and |
| (c) | has
been made available to the Company and each Finance Party. |
"Confidential Information"
means all information relating to any Obligor, the Group, the Guarantor and its Subsidiaries, the Finance Documents or a 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 a Facility from either:
| (a) | any
member of the Group, any member of the CGM Group or any of its respective advisers; or |
| (b) | another
Finance Party, if the information was obtained by that Finance Party directly or indirectly
from any member of the Group, any member of the CGM Group or any of its respective 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:
| (A) | is
or becomes public information other than as a direct or indirect result of any breach by
that Finance Party of Clause 39
(Confidential Information); |
| (B) | is
identified in writing at the time of delivery as non-confidential by any member of the Group,
any member of the CGM Group or any of its respective 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 or the CGM Group (as the case may be) 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 |
"Confidentiality Undertaking"
means a confidentiality undertaking substantially in a recommended form of the LMA or in any other form agreed between the Company and
the Facility Agent.
"Co-operating Clearing
House" has the meaning given to it in the Rules.
"Credit Adjustment
Spread" means, in relation to an RFR Revolving Loan, any rate specified as such in the applicable RFR Terms.
"Custodian"
means Citibank N.A., London Branch, Citibank Europe plc, Dublin and Citibank Europe plc, Sweden Branch each acting in its capacity as
settlement agent and account operator.
"Custody Agreement"
means the global and direct settlement services agreement dated January 2014 between the Company and Citibank, N.A., London Branch.
"Daily Non-Cumulative
Compounded RFR Rate" means, in relation to any RFR Banking Day during an Interest Period for an RFR Revolving Loan, the percentage
rate per annum determined by the Facility Agent (or by any other Finance Party which agrees to determine that rate in place of the Facility
Agent) in accordance with the methodology set out in Schedule 15 (Daily Non-Cumulative Compounded RFR Rate) or in any relevant
Compounding Methodology Supplement.
"Daily Rate"
means the rate specified as such in the applicable RFR Terms.
"Danish Krone Swingline
Loan" means a Swingline Loan denominated in Danish Krone.
"Default"
means an Event of Default or any event or circumstance specified in Clause 25
(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 the foregoing) be an Event of Default.
"Defaulting Lender"
means any Lender:
| (a) | which
has failed to make its participation in a Loan available (or has notified an Agent or the
Company (which has notified an Agent) that it will not make its participation in a Loan available)
by the Utilisation Date of that Loan in accordance with Clause 5.4
(Lenders' participation in Revolving Loans); |
| (b) | which
has otherwise rescinded or repudiated a Finance Document; or |
| (c) | with
respect to which an Insolvency Event has occurred and is continuing, |
unless, in the case of paragraph
(a) above:
| (i) | its
failure to pay is caused by: |
| (A) | administrative
or technical error; or |
and payment is made within
three Business Days of its due date; or
| (ii) | the
Lender is disputing in good faith whether it is contractually obliged to make the payment
in question. |
"Delegate"
means any delegate, agent, attorney, nominee or co-trustee appointed by the Security Agent.
"Designated Entity"
has the meaning given to it in paragraph (a) of Clause 2.5 (Designated Entities).
"Designated Entity
Accession Agreement" means an accession agreement substantially in the form set out in Part II of Schedule 12 (Designated
Entities) or any other form agreed between the Facility Agent and the Company.
"Disruption Event"
means either or both of:
| (a) | a
material disruption to those payment or communications systems or to those financial markets
which are, in each case, required to operate in order for payments to be made in connection
with a Facility (or otherwise in order for the transactions contemplated by the Finance Documents
to be carried out) which disruption is not caused by, and is beyond the control of, any of
the Parties; or |
| (b) | the
occurrence of any other event which results in a disruption (of a technical or systems-related
nature) to the treasury or payments operations of a Party preventing that, or any other Party: |
| (i) | from
performing its payment obligations under the Finance Documents; or |
| (ii) | from
communicating with other Parties in accordance with the terms of the Finance Documents, |
and which (in either such
case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
"DNB" means
the De Nederlandsche Bank, the central bank of the Netherlands or any other bank or authority which replaces all or any of the functions
of the central bank of the Netherlands that is relevant to the terms of Agreement.
"Dutch Financial Supervision
Act" means the Wet op het financieel toezicht.
"Dutch Group Member"
means a member of the Group incorporated in the Netherlands.
"EEA Member Country"
means any member state of the European Union, Iceland, Liechtenstein and Norway.
"Eligible Collateral"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Eligible Equities"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Eligible ETFs"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Eligible Institution"
means any Lender or other bank, financial institution, trust, fund or other entity selected by the Company and which, in each case, is
not a member of the Group and is not the Guarantor or any of the Subsidiaries of the Guarantor.
"Eligible Securities"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"EMIR" means
Regulation (EU) No 648/2012 on OTC derivatives, central counterparties and trade repositories, sometimes referred to as the "European
Markets Infrastructure Regulation" as amended by Regulation (EU) 2019/834 of the European Parliament and of the Council of 20 May 2019.
"Erroneous Payment"
means a payment of an amount by the Facility Agent to another Party which the Facility Agent determines (in its sole discretion) was
made in error.
"EU Bail-In Legislation
Schedule" means the document described as such and published by the Loan Market Association (or any successor person) from time
to time.
"Euro Revolving Loan"
means a Revolving Loan denominated in euro.
"Euro Swingline Loan"
means a Swingline Loan denominated in euro.
"Event of Default"
means any event or circumstance specified as such in Clause 25
(Events of Default).
"Exchange"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Facility"
means a Revolving Facility or a Swingline Facility.
"Facility Agent's
Spot Rate of Exchange" means:
| (a) | the
Facility Agent's spot rate of exchange; or |
| (b) | (if
the Facility Agent does not have an available spot rate of exchange) any other publicly available
spot rate of exchange selected by the Facility Agent (acting reasonably), |
for the purchase of the relevant
currency with the Base Currency in the London foreign exchange market at or about 11:00 a.m. on a particular day.
"Facility Office"
means the office or offices notified by a Lender to the Facility Agent (and, in the case of the Swingline Lenders, to the relevant Swingline
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 the period specified as such in the applicable Reference Rate Terms.
"FATCA" means:
| (a) | sections
1471 to 1474 of the Code and 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; and |
| (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; or |
| (b) | in
relation to a "passthru payment" described in section 1471(d)(7) of the Code
not falling within paragraph (a) above, the first date from which such payment may become
subject to a deduction or withholding required by FATCA. |
"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.
"Federal Funds Rate"
means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided
that:
| (a) | if
such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next succeeding
Business Day; and |
| (b) | if
no such rate is so published on such next succeeding Business Day, the Federal Funds Rate
for such day shall be the average rate (rounded upward, if necessary, to a whole multiple
of 1/100 of 1 per cent.) charged to the U.S. Dollar Swingline Agent on such day on such transactions
as determined by the U.S. Dollar Swingline Agent, |
provided that if any such
rate is below zero, the Federal Funds Rate will be deemed to be zero.
"Fee Letter"
means any letter or letters dated 9 December 2019, 1 July 2020, 27 May 2021, 1 July 2021, 30 June 2022 or on
or about the date of the 2023 Amendment and Restatement Agreement between, as the case may be, an Arranger(s) and the Company, each
of the Agents and the Security Agent and the Company or the Company and the Custodians and Collateral Monitor setting out any of the
fees referred to in Clause 13 (Fees) or otherwise required
to be paid in accordance with the Finance Documents.
"Finance Document"
means this Agreement, the 2023 Amendment and Restatement Agreement, any Fee Letter, any Security Document, any Accordion Increase Request,
any Accordion Increase Confirmation, any RFR Supplement, any Compounding Methodology Supplement and any other document designated as
such by the Facility Agent and the Company.
"Finance Party"
means the Facility Agent, the Security Agent, a Swingline Agent, an Arranger or a Lender.
"Financial Indebtedness"
means any indebtedness for or in respect of:
| (b) | any
amount raised by acceptance under any acceptance credit facility or dematerialised equivalent; |
| (c) | any
amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures,
loan stock or any similar instrument; |
| (d) | the
amount of any liability in respect of any lease or hire purchase contract which would, in
accordance with GAAP, be treated as a balance sheet liability; |
| (e) | receivables
sold or discounted (other than any receivables to the extent they are sold on a non-recourse
basis); |
| (f) | any
amount raised under 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; |
| (g) | 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) shall be taken into account); |
| (h) | 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; and |
| (i) | the
amount of any liability in respect of any guarantee or indemnity for any of the items referred
to in paragraphs (a) to (h) above. |
"Financial Instrument"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Financial Quarter"
means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.
"Funding Rate"
means any individual rate notified by a Lender to the relevant Agent pursuant to paragraph (a)(ii) of Clause 12.3
(Cost of funds – Revolving Loans); or paragraph (a)(ii) of Clause 12.5 (Cost of funds – Swingline Loans).
"GAAP" means:
| (a) | in
relation to the Company, generally accepted accounting principles, standards and practices
in the Netherlands, including IFRS; and |
| (b) | in
relation to the Guarantor, generally accepted accounting principles standards and practices
in the United States. |
"Group" means
the Company and its Subsidiaries for the time being.
"Guarantor Material
Adverse Effect" means:
| (a) | a
material adverse effect upon the operations, business or financial condition of the CGM Group,
taken as a whole; |
| (b) | a
material impairment of the Guarantor to perform its payment obligations under any Finance
Document to which it is a party; or |
| (c) | a
material adverse effect upon the validity or enforceability against the Guarantor of any
Finance Document to which it is a party, subject in each case to the Legal Reservations. |
"Guarantor Repeating
Representations" means each of the representations set out in Clauses 21.1 (Status), Clause 21.2 (Binding obligations),
paragraph (c) of Clause 21.3 (Non-conflict with other obligations), Clause 21.4 (Power and authority), Clause 21.5
(Validity and admissibility in evidence), Clause 21.6 (Governing law and enforcement), Clause 21.11 (Pari passu ranking),
Clause 21.12 (US regulation), Clause 21.13 (Solvency) and Clause 21.14 (Sanctions and anti-corruption).
"Hedging Agreement"
means any agreement in respect of any swap, forward, future or derivative transaction or option or similar agreement.
"Historic Primary
Term Rate" means, in relation to any Term Rate Revolving Loan, the most recent applicable Primary Term Rate 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 one day 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, International Financial Reporting Standards and related Interpretations, together with any future
standards and related interpretations issued or adopted by the International Accounting Standards Board, in each case as amended and
to the extent applicable to the relevant financial statements.
"Impaired Agent"
means an 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) | that
Agent otherwise rescinds or repudiates a Finance Document; |
| (c) | (if
that Agent is also a Lender) it is a Defaulting Lender (and, in the case of the events and
circumstances referred to in paragraph (a) of the definition of "Defaulting Lender",
none of the exceptions referred to in that definition apply); or |
| (d) | an
Insolvency Event has occurred and is continuing with respect to that Agent; |
unless, in the case of paragraph
(a) above:
| (i) | its
failure to pay is caused by: |
| (A) | administrative
or technical error; or |
and payment is made within
three Business Days of its due date; or
| (ii) | that
Agent is disputing in good faith whether it is contractually obliged to make the payment
in question. |
"Increase Confirmation"
means a confirmation substantially in the form set out in Schedule 9 (Form of Increase Confirmation).
"Increase Lender"
has the meaning given to it in paragraph (a)(i) of Clause 2.2
(Increase).
"Information Memorandum"
means the document in the form approved by the Company concerning the Company and the Guarantor which, at the Company's request and on
its behalf, was prepared in relation to this transaction and distributed by the Co-ordinator to selected financial institutions before
1 July 2020.
"Insolvency Event"
in relation to a Finance Party means the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager
or other similar officer in respect of that person or all or substantially all of that Finance Party's assets or any analogous procedure
or step is taken in any jurisdiction with respect to that Finance Party.
"Interest Period"
means, in relation to a Loan, each period determined in accordance with Clause 11
(Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 10.6
(Default interest).
"Interpolated Alternative
Term Rate" means, in relation to any Term Rate Revolving Loan, the rate (rounded to the same number of decimal places as the
two relevant Alternative Term Rates) which results from interpolating on a linear basis between:
| (a) | the
applicable Alternative Term Rate for the longest period (for which that Alternative Term
Rate is available) which is less than the Interest Period of that Loan; and |
| (b) | the
applicable Alternative Term Rate for the shortest period (for which that Alternative Term
Rate is available) which exceeds the Interest Period of that Loan, |
each as of the Quotation Day.
"Interpolated Historic
Primary Term Rate" means, in relation to any Term Rate Revolving Loan, the rate (rounded to the same number of decimal places
as the two relevant Primary Term Rates) which results from interpolating on a linear basis between:
| (a) | the
most recent applicable Primary Term Rate for the longest period (for which that Primary Term
Rate is available) which is less than the Interest Period of that Loan; and |
| (b) | the
most recent applicable Primary Term Rate for the shortest period (for which that Primary
Term Rate is available) which exceeds the Interest Period of that Loan, |
each of which is as of a day
which is no more than three days before the Quotation Day.
"Interpolated Primary
Term Rate" means, in relation to any Term Rate Revolving Loan, the rate (rounded to the same number of decimal places as the
two relevant Primary Term Rates) which results from interpolating on a linear basis between:
| (a) | the applicable Primary Term Rate for
the longest period (for which that Primary Term Rate is available) which is less than the
Interest Period of that Loan; and |
| (b) | the applicable Primary Term Rate for
the shortest period (for which that Primary Term Rate is available) which exceeds the Interest
Period of that Loan, |
each as of the Quotation Time.
"Legal Reservations"
means:
| (a) | the
principle that equitable remedies may be granted or refused at the discretion of a court
and the limitation of enforcement by laws relating to insolvency, reorganisation and other
laws generally affecting the rights of creditors; |
| (b) | the
time barring of claims under the Limitation Act 1980 or the Foreign Limitation Periods Act
1984, or any similar legislation (including the customary, common or other laws |
| | applicable
under the laws of any Relevant Jurisdiction), the possibility that an undertaking to assume
liability for or indemnify a person against non-payment of UK stamp duty may be void and
defences of set-off or counterclaim; |
| (c) | similar
principles, rights and defences under the laws of any Relevant Jurisdiction; and |
| (d) | any
other matters which are set out as qualifications or reservations as to matters of law of
general application in any legal opinion delivered to the Facility Agent pursuant to Clause
4.1 (Initial conditions precedent). |
"Lender"
means a Revolving Facility A Lender, Revolving Facility B Lender, Revolving Facility C Lender, a Revolving Facility D Lender, a Revolving
Facility E Lender, a Revolving Facility F Lender, a Revolving Facility G Lender, a Revolving Facility H Lender, a Revolving Facility
I Lender, a Revolving Facility J Lender, a Swingline Facility A Lender, a Swingline Facility B Lender, a Swingline Facility C Lender,
a Swingline Facility D Lender, a Swingline Facility E Lender, a Swingline Facility F Lender, a Swingline Facility G Lender, a Swingline
Facility H Lender, a Swingline Facility I Lender or a Swingline Facility J Lender.
"Link Agreement"
has the meaning given to it in the Rules.
"Liquidity Financing"
means any facility or funding made available to the Company by a provider of liquidity for the purposes of assisting the Company in financing
the operation of the Clearing System.
"LMA" means
the Loan Market Association.
"Loan" means
a Revolving Facility A Loan, Revolving Facility B Loan, Revolving Facility C Loan, a Revolving Facility D Loan, a Revolving Facility
E Loan, a Revolving Facility F Loan, a Revolving Facility G Loan, a Revolving Facility H Loan, a Revolving Facility I Loan, a Revolving
Facility J Loan, a Swingline Facility A Loan, Swingline Facility B Loan, a Swingline Facility C Loan, a Swingline Facility D Loan, a
Swingline Facility E Loan, a Swingline Facility F Loan, a Swingline Facility G Loan, a Swingline Facility H Loan, a Swingline Facility
I Loan or a Swingline Facility J Loan.
"London Business Day"
means a day (other than a Saturday or Sunday) on which banks are open for general business in London.
"Lookback Period"
means the number of days specified as such in the applicable RFR Terms.
"Majority Lenders"
means a Lender or Lenders whose Revolving Facility Commitments aggregate more than 662/3 per cent. of the Total
Revolving Facility Commitments (or, if the Total Revolving Facility Commitments have been reduced to zero, aggregated more than 662/3
per cent. of the Total Revolving Facility Commitments immediately prior to the reduction).
"Margin"
means 1.60 per cent. per annum.
"Margin Amount"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Market Disruption
Rate" means the rate (if any) specified as such in the applicable Reference Rate Terms.
"Material Adverse
Effect" means a material adverse effect on:
| (a) | the
business, financial condition or operations of the Group taken as a whole; |
| (b) | the
ability of the Obligors (taken as a whole) to perform any of their payment or other obligations
under any Finance Document; |
| (c) | subject
to any Legal Reservations, the validity or enforceability of any Finance Document; or |
| (d) | subject
to any Perfection Requirements and any Legal Reservations, the validity or enforceability
of any Security expressed to be created pursuant to any Security Document or on the priority
and ranking of any of that Security. |
"Month" means,
in relation to an Interest Period (or any other period for the accrual of commission or fees in a currency), a period starting on one
day in a calendar month and ending on the numerically corresponding day in the next calendar month:
| (a) | in
relation to an Interest Period for any RFR Loan, the rules specified as Business Day
Conventions in the applicable RFR Terms shall apply; and |
| (b) | in
relation to an Interest Period for any Term Rate Revolving Loan (or any other period for
the accrual of commission or fees) for which there are rules specified as "Business
Day Conventions" in respect of that currency in Schedule 13 (Term Rate Terms),
those rules shall apply, provided that the rules above will only apply to the last
Month of any period. |
"Net Worth"
means, at any time in relation to the Guarantor, the Guarantor's stockholders' equity determined in accordance with GAAP in effect at
that time (as modified pursuant to any requirement of federal or state law of the United States or any rule or regulation of any
United States federal or state governmental authority, including any applicable rule or regulation of the Securities and Exchange
Commission).
"New Lender"
has the meaning given to it in paragraph (b) of Clause 26.1 (Assignments and transfers by the Lenders).
"New York Business
Day" means a day (other than a Saturday or a Sunday) on which banks are open for general business in New York City.
"NIBOR" means,
in relation to any Loan in Norwegian Krone:
| (a) | the applicable Primary Term Rate as
of the applicable Specified Time for Norwegian Krone and for a period equal in length to
the Interest Period of that Loan; or |
| (b) | as otherwise determined pursuant to
Clause 12.1 (Interest
calculation if no Primary Term Rate – Revolving Loans) or Clause 12.4 (Interest
calculation if no Swingline Rate – Swingline Loans), |
and if, in either case, that
rate is less than zero, NIBOR shall be deemed to be zero.
"Non-Eligible Equity"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Non-Eligible ETF"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Nordic Currency"
means Danish Krone, Norwegian Krone and Swedish Krona.
"Norwegian Krone Swingline
Loan" means a Swingline Loan denominated in Norwegian Krone.
"Obligor"
means the Company or the Guarantor.
"Optional Currency"
means a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.3
(Conditions relating to Optional Currencies).
"Optional Currency
Swingline Loan" means a Swingline Loan denominated in an Optional Currency other than euro, sterling, U.S. dollars, Swiss Francs
or Danish Krone/Norwegian Krone/Swedish Krona.
"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 2022; and |
| (b) | in
relation to the Guarantor, its audited consolidated financial statements for its financial
year ended 31 December 2022. |
"Original Lender"
means an Original Revolving Lender or an Original Swingline Lender.
"Original Revolving
Facility A Lender" means a Lender listed in Part I of Schedule 1 (The Original Lenders) as having a Revolving Facility
A Commitment.
"Original Revolving
Facility B Lender" means a Lender listed in Part I of Schedule 1 (The Original Lenders) as having a Revolving Facility
B Commitment.
"Original Revolving
Facility C Lender" means a Lender listed in Part I of Schedule 1 (The Original Lenders) as having a Revolving Facility
C Commitment.
"Original Revolving
Facility D Lender" means a Lender listed in Part I of Schedule 1 (The Original Lenders) as having a Revolving Facility
D Commitment.
"Original Revolving
Facility E Lender" means a Lender listed in Part I of Schedule 1 (The Original Lenders) as having a Revolving Facility
E Commitment.
"Original Revolving
Facility F Lender" means a Lender listed in Part I of Schedule 1 (The Original Lenders) as having a Revolving Facility
F Commitment.
"Original Revolving
Facility G Lender" means a Lender listed in Part I of Schedule 1 (The Original Lenders) as having a Revolving Facility
G Commitment.
"Original Revolving
Facility H Lender" means a Lender listed in Part I of Schedule 1 (The Original Lenders) as having a Revolving Facility
H Commitment.
"Original Revolving
Facility I Lender" means a Lender listed in Part I of Schedule 1 (The Original Lenders) as having a Revolving Facility
I Commitment.
"Original Revolving
Facility J Lender" means a Lender listed in Part I of Schedule 1 (The Original Lenders) as having a Revolving Facility
J Commitment.
"Original Revolving
Lender" means an Original Revolving Facility A Lender, Original Revolving Facility B Lender, Original Revolving Facility C Lender,
Original Revolving Facility D Lender, Original Revolving Facility E Lender, Original Revolving Facility F Lender, Original Revolving
Facility G Lender, Original Revolving Facility H Lender, Original Revolving Facility I Lender or Original Revolving Facility J Lender.
"Original Security
Agreements" means each of:
| (a) | the
English law governed security document dated 1 July 2020 between the Company and the
Security Agent; |
| (b) | the
supplemental English law governed security document dated 1 July 2021 between the Company
and the Security Agent; |
| (c) | the
supplemental English law governed security document dated 30 June 2022 between the Company
and the Security Agent; |
| (d) | the
Irish law governed security document dated 1 July 2020 between the Company and the Security
Agent; |
| (e) | the
supplemental Irish law governed security document dated 1 July 2021 between the Company
and the Security Agent; |
| (f) | the
supplemental Irish law governed security document dated 30 June 2022 between the Company
and the Security Agent; and |
| (g) | the
Swedish law governed security document dated 1 July 2020 between the Company and the
Security Agent. |
"Original Swingline
Facility A Lender" means a Lender listed in Part II of Schedule 1 (The Original Lenders) as having a Swingline Facility
A Commitment.
"Original Swingline
Facility B Lender" means a Lender listed in Part II of Schedule 1 (The Original Lenders) as having a Swingline Facility
B Commitment.
"Original Swingline
Facility C Lender" means a Lender listed in Part II of Schedule 1 (The Original Lenders) as having a Swingline Facility
C Commitment.
"Original Swingline
Facility D Lender" means a Lender listed in Part II of Schedule 1 (The Original Lenders) as having a Swingline Facility
D Commitment.
"Original Swingline
Facility E Lender" means a Lender listed in Part II of Schedule 1 (The Original Lenders) as having a Swingline Facility
E Commitment.
"Original Swingline
Facility F Lender" means a Lender listed in Part II of Schedule 1 (The Original Lenders) as having a Swingline Facility
F Commitment.
"Original Swingline
Facility G Lender" means a Lender listed in Part II of Schedule 1 (The Original Lenders) as having a Swingline Facility
G Commitment.
"Original Swingline
Facility H Lender" means a Lender listed in Part II of Schedule 1 (The Original Lenders) as having a Swingline Facility
H Commitment.
"Original Swingline
Facility I Lender" means a Lender listed in Part II of Schedule 1 (The Original Lenders) as having a Swingline Facility
I Commitment.
"Original Swingline
Facility J Lender" means a Lender listed in Part II of Schedule 1 (The Original Lenders) as having a Swingline Facility
J Commitment.
"Original Swingline
Lender" means an Original Swingline Facility A Lender, Original Swingline Facility B Lender, Original Swingline Facility C Lender,
Original Swingline Facility D Lender, Original Swingline Facility E Lender, Original Swingline Facility F Lender, Original Swingline
Facility G Lender, Original Swingline Facility H Lender, Original Swingline Facility I Lender or Original Swingline Facility J Lender.
"Outstanding Facility
Amount" has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Overall Commitment"
of a Lender means in relation to each Revolving Facility:
| (a) | its
Revolving Facility Commitment in relation to that Facility; or |
| (b) | in
the case of a Swingline Lender which does not have a Revolving Facility Commitment in relation
to that Revolving Facility, the Revolving Facility Commitment of its Related Lender in relation
to that Facility. |
"Participating Member
State" means any member state of the European Union that adopts or has adopted, and in each case continues to adopt, 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.
"Perfection Requirements"
means the making of the appropriate registrations, filings or notifications of the Security Documents as specifically contemplated by
any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation).
"Primary Term Rate"
means for a currency and the applicable category of Loan, the rate specified as such in Schedule 13 (Term Rate Terms).
"Proposed Loan"
has the meaning given to it in paragraph 7(a)(i) of Part I of Schedule 6 (Borrowing Base).
"Published Rate"
means:
| (a) | the Alternative Term Rate for any Quoted
Tenor; |
| (b) | the Benchmark Rate for any Quoted Tenor; |
| (d) | an interest rate which is a constituent
element of the rates described in paragraphs (a) to (c) above. |
"Published Rate Replacement
Event" means, in relation to a Published Rate:
| (a) | the methodology, formula or other means
of determining that Published Rate has, in the opinion of the Majority Lenders and the Company,
materially changed; |
| (A) | the
administrator of that Published Rate or its supervisor publicly announces that such administrator
is insolvent; or |
| (B) | information
is published in any order, decree, notice, petition or filing, however described, of or filed
with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory
or judicial body which reasonably confirms that the administrator of that Published Rate
is insolvent, |
provided that, in each
case, at that time, there is no successor administrator to continue to provide that Published Rate;
| (ii) | the
administrator of that Published Rate publicly announces that it has ceased, or will cease,
to provide that Published Rate permanently or indefinitely and, at that time, there is no
successor administrator to continue to provide that Published Rate; |
| (iii) | the
supervisor of the administrator of that Published Rate publicly announces that such Published
Rate has been or will be permanently or indefinitely discontinued; |
| (iv) | the
administrator of that Published Rate or its supervisor announces that that Published Rate
may no longer be used; |
| (v) | in
the case of the Primary Term Rate for any Quoted Tenor for a currency to which Schedule 13
(Term Rate Terms) applies or the Swingline Rate in respect of U.S. Dollars, the supervisor
of the administrator of that rate makes a public announcement or publishes information: |
| (A) | stating
that that rate for that Quoted Tenor is no longer, or as of a specified future date will
no longer be, representative of the underlying market or economic reality that it is intended
to measure and that representativeness will not be restored (as determined by such supervisor);
and |
| (B) | with
awareness that any such announcement or publication will engage certain triggers for fallback
provisions in contracts which may be activated by any such pre-cessation announcement or
publication; |
| (c) | the administrator of that Published
Rate (or the administrator of an interest rate which is a constituent element of that Published
Rate) determines that that Published Rate should be calculated in accordance with its reduced
submissions or other contingency or fallback policies or arrangements and either: |
| (i) | the
circumstance(s) or event(s) leading to such determination are not (in the opinion
of the Majority Lenders and the Company) temporary; or |
| (ii) | that
Published Rate is calculated in accordance with any such policy or arrangement for a period
no less than one month; or |
| (d) | in the opinion of the Majority Lenders
and the Company, that Published Rate is otherwise no longer appropriate for the purposes
of calculating interest under this Agreement. |
"Qualifying Central
Counterparty" means a central counterparty that has been either authorised in accordance with Article 14 of EMIR or recognised
in accordance with Article 25 of EMIR.
"Quarter Date"
means each of 31 March, 30 June, 30 September and 31 December.
"Quotation Day"
means, in relation to any period for which an interest rate is to be determined the day specified as such for that currency in Schedule
13 (Term Rate Terms).
"Quotation Time"
means the relevant time (if any) specified as such in Schedule 13 (Term Rate Terms).
"Quoted Tenor"
means, in relation to a Primary Term Rate or an Alternative Term Rate, any period for which that rate is customarily displayed on the
relevant page or screen of an information service.
"Receiver"
means a receiver or receiver and manager or administrative receiver of the whole or any part of the Security Assets.
"Reference Rate Terms"
means, in relation to:
| (b) | a Loan or an Unpaid Sum in that currency; |
| (c) | an Interest Period for such a Loan
or Unpaid Sum (or other period for the accrual of commission or fees in a currency); or |
| (d) | any term of this Agreement relating
to the determination of a rate of interest in relation to such a Loan or Unpaid Sum, |
the terms set out for that
currency, and (where such terms are set out for different categories of Loan, Unpaid Sum or accrual of commission of fees in that currency)
for the applicable category of that Loan, Unpaid Sum or accrual, in Clause 1.1 (Definitions), Schedule 13 (Term Rate Terms)
or Schedule 14 (RFR Terms) or in any relevant RFR Supplement, as applicable.
"Regulation T, U or
X" means Regulation T, U or X, as the case may be, of the Federal Reserve Board, as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
"Regulatory Authorisation"
means any Authorisation required under any law or regulation or by or from any Regulatory Authority necessary or material to the conduct
of the business of the Company and its Subsidiaries as it is being conducted from time to time and to comply with its obligations under
the Finance Documents.
"Regulatory Authority"
means:
| (c) | any
governmental, inter-governmental or supranational body, agency or department, or any regulatory,
self-regulatory or other authority or organisation of or in the European Economic Area or
any other country or jurisdiction in which the Company operates or provides services, or
in which those securities supported by it are settled, from time to time. |
"Related Fund"
in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager or
investment adviser as the first fund or, 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.
"Related Lender"
means:
| (a) | in
relation to each Revolving Facility, in the case of a Revolving Lender which does not have
a Swingline Commitment related to that Revolving Facility, the Affiliate or branch of that
Lender which has such a Swingline Commitment; and |
| (b) | in
the case of a Swingline Lender which does not have a Revolving Facility Commitment in respect
of the Revolving Facility related to that Swingline Facility, the Affiliate or branch of
that Lender which has such a Revolving Facility Commitment. |
"Relevant Delivery
Date" has the meaning given to it in paragraph (b) of Clause 23.18 (Tangible Net Worth and Guarantor Net Worth).
"Relevant Jurisdiction"
means, in relation to an Obligor:
| (a) | its
jurisdiction of incorporation; |
| (b) | any
jurisdiction where any asset subject to or intended to be subject to the Transaction Security
to be created by it is situated; |
| (c) | any
jurisdiction where it conducts its business; and |
| (d) | any
jurisdiction whose laws govern the perfection of the Transaction Security, |
provided that, for the purposes
of Clause 21 (Representations of the Guarantor) and with resect to the Guarantor only, the definition of “Relevant Jurisdiction”
shall be limited only to jurisdictions where a material portion of the Guarantor’s assets are held.
"Relevant Market"
means:
| (a) | subject
to paragraph (b) below: |
| (i) | in
relation to a U.S. Dollar Swingline Loan, the London interbank market; |
| (ii) | in
relation to a Euro Swingline Loan, the euro wholesale market; |
| (iii) | in
relation to a Nordic Currency and a Euro Revolving Loan, the market specified as such in
respect of that currency in Schedule 13 (Term Rate Terms); and |
| (b) | in
relation to a currency and applicable category of Loan to which Schedule 14 (RFR Terms)
applies, the market specified as such in the applicable RFR Terms. |
"Relevant Nominating
Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or
committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
"Repayment Date"
means, in relation to a Loan, the date specified as the Repayment Date in the Utilisation Request for that Loan (or, if that day is not
a Business Day, or (in the case of a Swingline Loan) a Swingline Business Day, the immediately preceding Business Day or Swingline Business
Day (as the case may be)).
"Repeating Representations"
means the Company Repeating Representations and the Guarantor Repeating Representations.
"Replacement Reference
Rate" means a reference rate which is:
| (a) | formally
designated, nominated or recommended as the replacement for a Published Rate by: |
| (i) | the
administrator of that Published Rate (provided that the market and the economic reality
that such reference rate measures is the same as that measured by that Published Rate); or |
| (ii) | any
Relevant Nominating Body, |
and if replacements have, at
the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Reference Rate"
will be the replacement under paragraph (ii) above;
| (b) | in
the opinion of the Majority Lenders and the Company, generally accepted in the international
or any relevant domestic syndicated loan markets as the appropriate successor to a Published
Rate; or |
| (c) | in
the opinion of the Majority Lenders and the Company, an appropriate successor to a Published
Rate. |
"Reporting Day"
means the day (if any) specified as such in the applicable RFR Terms.
"Reporting Time"
means the relevant time (if any) specified as such in the applicable RFR Terms.
"Representative"
means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
"Required Value"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Required Value Notice"
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
"Resolution Authority"
means any body which has authority to exercise any Write-down and Conversion Powers.
"Restricted Payment"
means:
| (a) | any
dividend or other distribution (whether in cash, securities or other property) with respect
to any shares or any class of capital stock of the Company or any other member of the Group; |
| (b) | any
payment (whether in cash, securities or other property), including any sinking fund or similar
deposit on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such shares of capital stock of the Company or any other member of the
Group; |
| (c) | any
option warrant or other right to acquire any such shares of capital stock of the Company
or any other member of the Group; |
| (d) | any
voluntary rebate to any Clearing Participant or to any Co-operating Clearing House; or |
| (e) | any
payment to any Clearing Participant or to any Co-operating Clearing House, other than as
contemplated in, and in accordance with, the Rules. |
"Revolving Facility"
means Revolving Facility A, Revolving Facility B, Revolving Facility C, Revolving Facility D, Revolving Facility E, Revolving Facility
F, Revolving Facility G, Revolving Facility H, Revolving Facility I or Revolving Facility J.
"Revolving Facility
A" means the revolving loan facility made available under this Agreement as described in paragraph (a)(i) of Clause 2.1
(The Facility) and incorporating as an option, the Swingline Facility A.
"Revolving Facility
A Commitment" means:
| (a) | in
relation to an Original Revolving Lender, the amount in the Base Currency set opposite its
name under the heading "Revolving Facility A Commitment" in Part I of Schedule
1 (The Original Lenders) and the amount of any other Revolving Facility A Commitment
transferred to it under this Agreement, assumed by it in accordance with Clause 2.2 (Increase)
or assumed by it in accordance with Clause 2.3 (Increase – Accordion Option);
and |
| (b) | in
relation to any other Revolving Lender, the amount in the Base Currency of any Revolving
Facility A Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
in each case to the extent
not cancelled, reduced or transferred by it under this Agreement.
"Revolving Facility
A Lender" means:
| (a) | any
Original Revolving Facility A Lender; and |
| (b) | any
bank, financial institution, trust, fund or other entity which has become a Party as a "Revolving
Facility A Lender" in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase
– Accordion Option) or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Revolving Facility
A Loan" means a loan made or to be made under the Revolving Facility A (other than a Swingline Loan) or the principal amount
outstanding for the time being of that loan.
"Revolving Facility
B" means the revolving loan facility made available under this Agreement as described in paragraph (a)(ii) of Clause 2.1
(The Facility) and incorporating as an option, the Swingline Facility B.
"Revolving Facility
B Commitment" means:
| (a) | in
relation to an Original Revolving Lender, the amount in the Base Currency set opposite its
name under the heading "Revolving Facility B Commitment" in Part I of Schedule
1 (The Original Lenders) and the amount of any other Revolving Facility B Commitment
transferred to it under this Agreement, assumed by it in accordance with Clause 2.2 (Increase)
or assumed by it in accordance with Clause 2.3 (Increase – Accordion Option);
and |
| (b) | in
relation to any other Revolving Lender, the amount in the Base Currency of any Revolving
Facility B Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
in each case to the extent
not cancelled, reduced or transferred by it under this Agreement.
"Revolving Facility
B Lender" means:
| (a) | any
Original Revolving Facility B Lender; and |
| (b) | any
bank, financial institution, trust, fund or other entity which has become a Party as a "Revolving
Facility B Lender" in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase
– Accordion Option) or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Revolving Facility
B Loan" means a loan made or to be made under the Revolving Facility B (other than a Swingline Loan) or the principal amount
outstanding for the time being of that loan.
"Revolving Facility
C" means the revolving loan facility made available under this Agreement as described in paragraph (a)(iii) of Clause 2.1
(The Facility) and incorporating as an option, the Swingline Facility C.
"Revolving Facility
C Commitment" means:
| (a) | in
relation to an Original Revolving Lender, the amount in the Base Currency set opposite its
name under the heading "Revolving Facility C Commitment" in Part I of Schedule
1 (The Original Lenders) and the amount of any other Revolving Facility C Commitment
transferred to it under this Agreement, assumed by it in accordance with Clause 2.2 (Increase)
or assumed by it in accordance with Clause 2.3 (Increase – Accordion Option);
and |
| (b) | in
relation to any other Revolving Lender, the amount in the Base Currency of any Revolving
Facility C Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
in each case to the extent
not cancelled, reduced or transferred by it under this Agreement.
"Revolving Facility
C Lender" means:
| (a) | any
Original Revolving Facility C Lender; and |
| (b) | any
bank, financial institution, trust, fund or other entity which has become a Party as a "Revolving
Facility C Lender" in accordance with Clause 2.2
(Increase), Clause 2.3 (Increase – Accordion Option) or Clause 26
(Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Revolving Facility
C Loan" means a loan made or to be made under the Revolving Facility C (other than a Swingline Loan) or the principal amount
outstanding for the time being of that loan.
"Revolving Facility
Commitments" means a Revolving Facility A Commitment, a Revolving Facility B Commitment, a Revolving Facility C Commitment,
a Revolving Facility D Commitment a Revolving Facility E Commitment, a Revolving Facility F Commitment or a Revolving Facility G Commitment.
"Revolving Facility
D" means the revolving loan facility made available under this Agreement as described in paragraph (a)(iv) of Clause 2.1
(The Facility) and incorporating as an option, the Swingline Facility D.
"Revolving Facility
D Commitment" means:
| (a) | in
relation to an Original Revolving Lender, the amount in the Base Currency set opposite its
name under the heading "Revolving Facility D Commitment" in Part I of Schedule
1 (The Original Lenders) and the amount of any other Revolving Facility D Commitment
transferred to it under this Agreement, assumed by it in accordance with Clause 2.2 (Increase)
or assumed by it in accordance with Clause 2.3 (Increase – Accordion Option);
and |
| (b) | in
relation to any other Revolving Lender, the amount in the Base Currency of any Revolving
Facility D Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
in each case to the extent
not cancelled, reduced or transferred by it under this Agreement.
"Revolving Facility
D Lender" means:
| (a) | any
Original Revolving Facility D Lender; and |
| (b) | any
bank, financial institution, trust, fund or other entity which has become a Party as a "Revolving
Facility D Lender" in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase
– Accordion Option) or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Revolving Facility
D Loan" means a loan made or to be made under the Revolving Facility D (other than a Swingline Loan) or the principal amount
outstanding for the time being of that loan.
"Revolving Facility
E" means the revolving loan facility made available under this Agreement as described in paragraph (a)(v) of Clause 2.1
(The Facility) and incorporating as an option, the Swingline Facility E.
"Revolving Facility
E Commitment" means:
| (a) | in
relation to an Original Revolving Lender, the amount in the Base Currency set opposite its
name under the heading "Revolving Facility E Commitment" in Part I of Schedule
1 (The Original Lenders) and the amount of any other Revolving Facility E Commitment
transferred to it under this Agreement, assumed by it in accordance with Clause 2.2 (Increase)
or assumed by it in accordance with Clause 2.3 (Increase – Accordion Option);
and |
| (b) | in
relation to any other Revolving Lender, the amount in the Base Currency of any Revolving
Facility E Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
in each case to the extent
not cancelled, reduced or transferred by it under this Agreement.
"Revolving Facility
E Lender" means:
| (a) | any
Original Revolving Facility E Lender; and |
| (b) | any
bank, financial institution, trust, fund or other entity which has become a Party as a "Revolving
Facility E Lender" in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase
– Accordion Option) or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Revolving Facility
E Loan" means a loan made or to be made under the Revolving Facility E (other than a Swingline Loan) or the principal amount
outstanding for the time being of that loan.
"Revolving Facility
F" means the revolving loan facility made available under this Agreement as described in paragraph 2.1(a)(vi) of Clause
2.1 (The Facility) and incorporating as an option, the Swingline Facility F.
"Revolving Facility
F Commitment" means:
| (a) | in
relation to an Original Revolving Lender, the amount in the Base Currency set opposite its
name under the heading "Revolving Facility F Commitment" in Part I of Schedule
1 (The Original Lenders) and the amount of any other Revolving Facility F Commitment
transferred to it under this Agreement, assumed by it in accordance with Clause 2.2 (Increase)
or assumed by it in accordance with Clause 2.3 (Increase – Accordion Option);
and |
| (b) | in
relation to any other Revolving Lender, the amount in the Base Currency of any Revolving
Facility F Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
in each case to the extent
not cancelled, reduced or transferred by it under this Agreement.
"Revolving Facility
F Lender" means:
| (a) | any
Original Revolving Facility F Lender; and |
| (b) | any
bank, financial institution, trust, fund or other entity which has become a Party as a "Revolving
Facility F Lender" in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase
– Accordion Option) or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Revolving Facility
F Loan" means a loan made or to be made under the Revolving Facility F (other than a Swingline Loan) or the principal amount
outstanding for the time being of that loan.
"Revolving Facility
G" means the revolving loan facility made available under this Agreement as described in paragraph 2.1(a)(vii) of Clause
2.1 (The Facility) and incorporating as an option, the Swingline Facility G.
"Revolving Facility
G Commitment" means:
| (a) | in
relation to an Original Revolving Lender, the amount in the Base Currency set opposite its
name under the heading "Revolving Facility G Commitment" in Part I of Schedule
1 (The Original Lenders) and the amount of any other Revolving Facility G Commitment
transferred to it under this Agreement, assumed by it in accordance with Clause 2.2 (Increase)
or assumed by it in accordance with Clause 2.3 (Increase – Accordion Option);
and |
| (b) | in
relation to any other Revolving Lender, the amount in the Base Currency of any Revolving
Facility G Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
in each case to the extent
not cancelled, reduced or transferred by it under this Agreement.
"Revolving Facility
G Lender" means:
| (a) | any
Original Revolving Facility G Lender; and |
| (b) | any
bank, financial institution, trust, fund or other entity which has become a Party as a "Revolving
Facility G Lender" in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase
– Accordion Option) or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Revolving Facility
G Loan" means a loan made or to be made under the Revolving Facility G (other than a Swingline Loan) or the principal amount
outstanding for the time being of that loan.
"Revolving Facility
H" means the revolving loan facility made available under this Agreement as described in paragraph (a)(viii) of
Clause 2.1 (The Facility) and incorporating as an option, the Swingline Facility H.
"Revolving Facility
H Commitment" means:
| (a) | in
relation to an Original Revolving Lender, the amount in the Base Currency set opposite its
name under the heading "Revolving Facility H Commitment" in Part I of Schedule
1 (The Original Lenders) and the amount of any other Revolving Facility H Commitment
transferred to it under this Agreement, assumed by it in accordance with Clause 2.2 (Increase)
or assumed by it in accordance with Clause 2.3 (Increase – Accordion Option);
and |
| (b) | in
relation to any other Revolving Lender, the amount in the Base Currency of any Revolving
Facility H Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
in each case to the extent
not cancelled, reduced or transferred by it under this Agreement.
"Revolving Facility
H Lender" means:
| (a) | any
Original Revolving Facility H Lender; and |
| (b) | any
bank, financial institution, trust, fund or other entity which has become a Party as a "Revolving
Facility H Lender" in accordance with Clause 2.2
(Increase), Clause 2.3 (Increase – Accordion Option) or Clause 26
(Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Revolving Facility
H Loan" means a loan made or to be made under the Revolving Facility H (other than a Swingline Loan) or the principal amount
outstanding for the time being of that loan.
"Revolving Facility
I" means the revolving loan facility made available under this Agreement as described in paragraph (a)(ix) of
Clause 2.1 (The Facility) and incorporating as an option, the Swingline Facility I.
"Revolving Facility
I Commitment" means:
| (a) | in
relation to an Original Revolving Lender, the amount in the Base Currency set opposite its
name under the heading "Revolving Facility I Commitment" in Part I of Schedule
1 (The Original Lenders) and the amount of any other Revolving Facility I Commitment
transferred to it under this Agreement, assumed by it in accordance with Clause 2.2 (Increase)
or assumed by it in accordance with Clause 2.3 (Increase – Accordion Option);
and |
| (b) | in
relation to any other Revolving Lender, the amount in the Base Currency of any Revolving
Facility I Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
in each case to the extent
not cancelled, reduced or transferred by it under this Agreement.
"Revolving Facility
I Lender" means:
| (a) | any
Original Revolving Facility I Lender; and |
| (b) | any
bank, financial institution, trust, fund or other entity which has become a Party as a "Revolving
Facility I Lender" in accordance with Clause 2.2
(Increase), Clause 2.3 (Increase – Accordion Option) or Clause 26
(Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Revolving Facility
I Loan" means a loan made or to be made under the Revolving Facility I (other than a Swingline Loan) or the principal amount
outstanding for the time being of that loan.
"Revolving Facility
J" means the revolving loan facility made available under this Agreement as described in paragraph (a)(x) of
Clause 2.1 (The Facility) and incorporating as an option, the Swingline Facility J.
"Revolving Facility
J Commitment" means:
| (a) | in
relation to an Original Revolving Lender, the amount in the Base Currency set opposite its
name under the heading "Revolving Facility J Commitment" in Part I of Schedule
1 (The Original Lenders) and the amount of any other Revolving Facility J Commitment
transferred to it under this Agreement, assumed by it in accordance with Clause 2.2 (Increase)
or assumed by it in accordance with Clause 2.3 (Increase – Accordion Option);
and |
| (b) | in
relation to any other Revolving Lender, the amount in the Base Currency of any Revolving
Facility J Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
in each case to the extent
not cancelled, reduced or transferred by it under this Agreement.
"Revolving Facility
J Lender" means:
| (a) | any
Original Revolving Facility J Lender; and |
| (b) | any
bank, financial institution, trust, fund or other entity which has become a Party as a "Revolving
Facility J Lender" in accordance with Clause 2.2
(Increase), Clause 2.3 (Increase – Accordion Option) or Clause 26
(Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Revolving Facility
J Loan" means a loan made or to be made under the Revolving Facility J (other than a Swingline Loan) or the principal amount
outstanding for the time being of that loan.
"Revolving Lender"
means:
| (a) | any Original Revolving Lender; or |
| (b) | any bank, financial institution, trust,
fund or other entity which has become a Party as a "Revolving Lender" in accordance
with Clause 2.2
(Increase), Clause 2.3 (Increase – Accordion Option) or Clause 26
(Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Revolving Loan"
means a Revolving Facility A Loan, a Revolving Facility B Loan, Revolving Facility C Loan, a Revolving Facility D Loan, a Revolving Facility
E Loan, a Revolving Facility F Loan, a Revolving Facility G Loan, a Revolving Facility H Loan, a Revolving Facility I Loan or a Revolving
Facility J Loan.
"Revolving Loan Rate"
means:
| (a) | in relation to an RFR Banking Day during
the Interest Period of a RFR Revolving Loan: |
| (i) | in respect of a Revolving Loan in sterling,
Swiss Francs or U.S. Dollar, the percentage rate per annum which is the aggregate of: |
| (A) | the Daily Non-Cumulative Compounded
RFR Rate for that RFR Banking Day; and |
| (B) | the applicable Credit Adjustment Spread
(if any); and |
| (b) | in relation to a Term Rate Revolving
Loan in euro or a Nordic Currency, the Benchmark Rate for that currency. |
"Revolving Loan RFR
Rate" means the rate specified in paragraph (a) of the definition of “Revolving Loan Rate”.
"Revolving Loan Term
Rate" means:
| (a) | in respect of a Revolving Loan denominated
in a Nordic Currency, the Benchmark Rate for that currency; |
| (b) | in respect of a Euro Revolving Loan,
the Benchmark Rate for euro, |
and if, in each case, that
rate is less than zero, the Revolving Loan Term Rate shall be deemed to be zero.
"RFR" means
the risk free rate specified as such in the applicable RFR Terms.
"RFR Banking Day"
means any day specified as such in the applicable RFR Terms.
"RFR Interest Payment"
means the aggregate amount of interest that:
| (a) | is,
or is scheduled to become, payable under any Finance Document; and |
| (b) | relates
to an RFR Revolving Loan. |
"RFR Loan"
means any RFR Revolving Loan, Sterling Swingline Loan or Swiss Francs Swingline Loan.
"RFR Revolving Loan"
means any Revolving Loan or, if applicable, Unpaid Sum, denominated in sterling, U.S. Dollar or Swiss Francs.
"RFR Supplement"
means, in relation to any currency to which RFR Terms apply, a document which:
| (a) | is agreed in writing by the Company,
the Facility Agent (in its own capacity) and the Facility Agent (acting on the instructions
of a Lender or Lenders whose Revolving Facility Commitments or Swingline Facility Commitments
(as applicable) for an RFR Loan in that currency aggregate more than 662/3
per cent. of the Total Revolving Facility Commitments or the Total Swingline Commitments
(as applicable) for an RFR Loan in which that currency may be utilised) or, in the case of
any RFR Supplement which has the effect of a reduction in the Margin, all the Lenders of
an RFR Loan under which that currency may be utilised); |
| (b) | specifies for that currency and applicable
category of Loan the relevant terms which are expressed in this Agreement to be determined
by reference to RFR Terms; and |
| (c) | has been made available to the Company
and each Finance Party. |
"RFR Terms"
means, in relation to:
| (b) | a Loan or an Unpaid Sum in that currency; |
| (c) | an Interest Period for such a Loan
or Unpaid Sum (or other period for the accrual of commission or fees in a currency); or |
| (d) | any term of this Agreement relating
to the determination of a rate of interest in relation to such a Loan or Unpaid Sum, |
the risk free rate terms set
out for that currency, and (where such terms are set out for different categories of Loan, Unpaid Sum or accrual of commission or fees
in that currency) for the applicable category of that Loan, Unpaid Sum or accrual, in Schedule 14 (RFR Terms) or in any relevant
RFR Supplement.
"Rollover Loan"
means one or more Revolving Loans:
| (a) | made
or to be made on the same day that one or more maturing Revolving Loans is or are due to
be repaid; |
| (b) | the
aggregate amount of which is equal to or less than the amount of the maturing Revolving Loan(s) (unless
it is more than the maturing Revolving Loan(s) solely because it arose as a result of
the operation of Clause 7.2
(Unavailability of a currency)); |
| (c) | in
the same currency as the maturing Revolving Loan(s) (unless it arose as a result of
the operation of Clause 7.2
(Unavailability of a currency)); and |
| (d) | made
or to be made to the Company for the purpose of refinancing the maturing Revolving Loan(s). |
"Rules" means
the rules set out in the Clearing Rule Book, including all Clearing Regulations as in effect on the date of the 2023 Amendment
and Restatement Agreement and as may be amended, supplemented or modified from time to time.
"Sanctions"
means any economic or financial sanctions, trade embargoes or other similar restrictive measures imposed, enacted, administered or enforced
from time to time by any Sanctions Authority.
"Sanctions Authority"
means:
| (a) | the
US government (including the US Department of State and the US Department of the Treasury
(including the Office of Foreign Assets Control)); |
| (b) | the
United Kingdom government (including His Majesty's Treasury and the Foreign, Commonwealth &
Development Office); |
| (c) | the
United Nations Security Council; or |
| (d) | the
European Union (or any of its member states), |
including, in each case, any
other governmental institution or agency of the foregoing.
"Sanctions Restricted
Person" means any person that is, or is owned or controlled (as such terms are interpreted in accordance with applicable Sanctions
laws and regulations) by one or more persons that is, (a) publicly designated by a Sanctions Authority to be the target of Sanctions,
(b) a citizen of, located or resident in, or incorporated or organised under the laws of a country or territory that is the target
of country-wide or territory-wide Sanctions or (c) otherwise the target of Sanctions.
"Secured Liabilities"
means all present and future liabilities and obligations at any time due, owing or incurred by an Obligor to the Secured Parties under
the Finance Documents, both actual and contingent and whether incurred solely or jointly or as principal or surety or in any other capacity
together with any of the following matters relating to or arising in respect of those liabilities and obligations:
| (a) | any
refinancing, novation, deferral or extension; |
| (b) | any
claim for breach of representation, warranty or undertaking or on an event of default or
under any indemnity given under or in connection with any document or agreement evidencing
or constituting any other liability or obligation falling within this definition; |
| (c) | any
claim for damages or restitution; and |
| (d) | any
claim as a result of any recovery by an Obligor of a payment, prepayment, repayment, redemption,
defeasance or discharge of those liabilities or obligations on the grounds of preference
or otherwise, |
and any amounts which would
be included in any of the above but for any discharge, non-provability, unenforceability or non-allowance of those amounts in any insolvency
or other proceedings.
"Secured Party"
means a Finance Party, a Receiver or any Delegate.
"Security"
means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement
having a similar effect.
"Security Assets"
means all the assets which from time to time are, or are expressed to be, the subject of the Transaction Security.
"Security Document"
means each Original Security Agreement, each Supplemental Security Agreement, the Collateral Monitoring Deed, the Custody Agreement and
any other security document that may at any time be given as security for any of the Secured Liabilities pursuant to or in connection
with a Finance Document.
"Security Property"
means:
| (a) | the
Transaction Security expressed to be granted in favour of the Security Agent as security
agent for the Secured Parties and all proceeds of that Transaction Security; |
| (b) | all
obligations expressed to be undertaken by an Obligor to pay amounts in respect of the Secured
Liabilities to the Security Agent as security agent for the Secured Parties and secured by
the Transaction Security together with all representations and warranties and undertakings
expressed to be given by an Obligor or any other person in favour of the Security Agent as
security agent for the Secured Parties; and |
| (c) | any
other amounts or property, whether rights, entitlements, choses in action or otherwise, actual
or contingent, which the Security Agent is required by the terms of the Finance Documents
to hold as security agent for the Secured Parties. |
"Specified Time"
means:
| (a) | in relation to an RFR Loan, a day or
time determined in accordance with Schedule 8 (Timetables); and |
| (b) | in relation to a Term Rate Revolving
Loan, a day or time specified as such in respect of that currency in Schedule 13 (Term
Rate Terms). |
"Sterling Swingline
Loan" means a Swingline Loan denominated in sterling.
"Subsidiary"
means in relation to any company, corporation or other legal entity (a "Holding Company"), a company, corporation or
other legal entity:
| (a) | which is controlled, directly or indirectly,
by the Holding Company; |
| (b) | in which a majority of the voting rights
are held by the Holding Company, either alone or pursuant to an agreement with others; |
| (c) | more than half the issued share capital
of which is beneficially owned, directly or indirectly, by the Holding Company; or |
| (d) | which is a subsidiary of another Subsidiary
of the Holding Company, |
and, for this purpose, a company,
corporation or other legal entity shall be treated as being controlled by another if that other company, corporation or other legal entity
is able to determine the composition of the majority of its board of directors or equivalent body.
"Supplemental Security
Agreement" means each of:
| (a) | the
English law governed security document dated on or about the date of the 2023 Amendment and
Restatement Agreement between the Company and the Security Agent; and |
| (b) | the
Irish law governed security document dated on or about the date of the 2023 Amendment and
Restatement Agreement between the Company and the Security Agent. |
"STIBOR"
means, in relation to any Loan in Swedish Krona:
| (a) | the applicable Primary Term Rate as
of the applicable Specified Time for Swedish Krona and for a period equal in length to the
Interest Period of that Loan; or |
| (b) | as otherwise determined pursuant to
Clause 12.1 (Interest calculation if no Primary Term Rate – Revolving Loans)
or Clause 12.4 (Interest calculation if no Swingline Rate – Swingline Loans), |
and if, in either case, that
rate is less than zero, STIBOR shall be deemed to be zero.
"Swedish Krona Swingline
Loan" means a Swingline Loan denominated in Swedish Krona.
"Swingline Agent"
means the U.S. Dollar Swingline Agent, the €/£ Swingline Agent, the Swiss Francs Swingline Agent, the Danish Krone/Norwegian
Krone/Swedish Krona Swingline Agent or (in respect of the Swingline Facility C Nordic Loans only) the Facility C Swingline Agent.
"Swingline Business
Day" means:
| (a) | in the case of a Euro Swingline Loan,
a day which is any TARGET Day; |
| (b) | in the case of a Sterling Swingline
Loan, a day which is a Business Day for that currency; |
| (c) | in the case of a U.S. Dollar Swingline
Loan, a New York Business Day; |
| (d) | in the case of a Swiss Francs Swingline
Loan, any day which is a Business Day for that currency; or |
| (e) | in the case of a Danish Krone Swingline
Loan/Norwegian Krone Swingline Loan/Swedish Krona Swingline Loan, any day (other than a Saturday
or a Sunday) on which banks are open for general business in Stockholm and in the principal
centre of the country of that currency. |
"Swingline Commitments"
means a Swingline Facility A Commitment, a Swingline Facility B Commitment, a Swingline Facility C Commitment, a Swingline Facility D
Commitment, a Swingline Facility E Commitment, a Swingline Facility F Commitment, a Swingline Facility G Commitment, a Swingline Facility
H Commitment, a Swingline Facility I Commitment or a Swingline Facility J Commitment.
"Swingline Facility"
means Swingline Facility A, Swingline Facility B, Swingline Facility C, Swingline Facility D, Swingline Facility E, Swingline Facility
F, Swingline Facility G, Swingline Facility H, Swingline Facility I or Swingline Facility J.
"Swingline Facility
A" means the euro multicurrency swingline loan facility made available under this Agreement as described in paragraph (b)(i) of
Clause 2.1 (The Facility).
"Swingline Facility
A Commitment" means:
| (a) | in
relation to an Original Swingline Lender, the amount in the Base Currency set out opposite
its name under the heading "Swingline Facility A Commitment" in Part II of
Schedule 1 (The Original Lenders) and the amount of any other Swingline Facility A
Commitment transferred to it under this Agreement, assumed by it in accordance with Clause
2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase –
Accordion Option); and |
| (b) | in
relation to any other Swingline Lender, the amount in the Base Currency of any Swingline
Facility A Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
to the extent not cancelled,
reduced or transferred by it under this Agreement.
"Swingline Facility
A Lender" means:
| (a) | an
Original Swingline Facility A Lender; or |
| (b) | any
bank or financial institution, trust, fund or other entity which has become a Swingline Facility
A Lender in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase –
Accordion Option) or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Swingline Facility
A Loan" means a loan made or to be made under the Swingline Facility A or the principal amount outstanding for the time being
of that loan.
"Swingline Facility
B" means the euro multicurrency swingline loan facility made available under this Agreement as described in paragraph (b)(ii) of
Clause 2.1 (The Facility).
"Swingline Facility
B Commitment" means:
| (a) | in
relation to an Original Swingline Lender, the amount in the Base Currency set out opposite
its name under the heading "Swingline Facility B Commitment" in Part II of
Schedule 1 (The Original Lenders) and the amount of any other Swingline Facility B
Commitment transferred to it under this Agreement, assumed by it in accordance with Clause
2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase –
Accordion Option); and |
| (b) | in
relation to any other Swingline Lender, the amount in the Base Currency of any Swingline
Facility B Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
to the extent not cancelled,
reduced or transferred by it under this Agreement.
"Swingline Facility
B Lender" means:
| (a) | an
Original Swingline Facility B Lender; or |
| (b) | any
bank or financial institution, trust, fund or other entity which has become a Swingline Facility
B Lender in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase –
Accordion Option) or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Swingline Facility
B Loan" means a loan made or to be made under the Swingline Facility B or the principal amount outstanding for the time being
of that loan.
"Swingline Facility
C" means the euro multicurrency swingline loan facility made available under this Agreement as described in paragraph (b)(iii) of
Clause 2.1 (The Facility).
"Swingline Facility
C Commitment" means:
| (a) | in
relation to an Original Swingline Lender, the amount in the Base Currency set out opposite
its name under the heading "Swingline Facility C Commitment" in Part II of
Schedule 1 (The Original Lenders) and the amount of any other Swingline Facility C
Commitment transferred to it under this Agreement, assumed by it in accordance with Clause
2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase –
Accordion Option); and |
| (b) | in
relation to any other Swingline Lender, the amount in the Base Currency of any Swingline
Facility C Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
to the extent not cancelled,
reduced or transferred by it under this Agreement.
"Swingline Facility
C Lender" means:
| (a) | an
Original Swingline Facility C Lender; or |
| (b) | any
bank or financial institution, trust, fund or other entity which has become a Swingline Facility
C Lender in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase –
Accordion Option) or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Swingline Facility
C Loan" means a loan made or to be made under the Swingline Facility C or the principal amount outstanding for the time being
of that loan.
"Swingline Facility
D" means the euro multicurrency swingline loan facility made available under this Agreement as described in paragraph (b)(iv) of
Clause 2.1 (The Facility).
"Swingline Facility
D Commitment" means:
| (a) | in relation to an Original Swingline
Lender, the amount in the Base Currency set out opposite its name under the heading "Swingline
Facility D Commitment" in Part II of Schedule 1 (The Original Lenders) and
the amount of any other Swingline Facility D Commitment transferred to it under this Agreement,
assumed by it in accordance with Clause 2.2 (Increase) or assumed by it in accordance
with Clause 2.3 (Increase – Accordion Option); and |
| (b) | in relation to any other Swingline
Lender, the amount in the Base Currency of any Swingline Facility D Commitment transferred
to it under this Agreement, assumed by it in accordance with Clause 2.2 (Increase)
or assumed by it in accordance with Clause 2.3 (Increase – Accordion Option), |
to the extent not cancelled,
reduced or transferred by it under this Agreement.
"Swingline Facility
D Lender" means:
| (a) | an Original Swingline Facility D Lender;
or |
| (b) | any bank or financial institution,
trust, fund or other entity which has become a Swingline Facility D Lender in accordance
with Clause 2.2 (Increase), Clause 2.3 (Increase – Accordion Option)
or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Swingline Facility
D Loan" means a loan made or to be made under the Swingline Facility D or the principal amount outstanding for the time being
of that loan.
"Swingline Facility
E" means the euro multicurrency swingline loan facility made available under this Agreement as described in paragraph (b)(v) of
Clause 2.1 (The Facility).
"Swingline Facility
E Commitment" means:
| (a) | in
relation to an Original Swingline Lender, the amount in the Base Currency set out opposite
its name under the heading "Swingline Facility E Commitment" in Part II of
Schedule 1 (The Original Lenders) and the amount of any other Swingline Facility E
Commitment transferred to it under this Agreement, assumed by it in accordance with Clause
2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase –
Accordion Option); and |
| (b) | in
relation to any other Swingline Lender, the amount in the Base Currency of any Swingline
Facility E Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
to the extent not cancelled,
reduced or transferred by it under this Agreement.
"Swingline Facility
E Lender" means:
| (a) | an
Original Swingline Facility E Lender; or |
| (b) | any
bank or financial institution, trust, fund or other entity which has become a Swingline Facility
E Lender in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase –
Accordion Option) or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Swingline Facility
E Loan" means a loan made or to be made under the Swingline Facility E or the principal amount outstanding for the time being
of that loan.
"Swingline Facility
F" means the euro multicurrency swingline loan facility made available under this Agreement as described in paragraph 2.1(b)(vi) of
Clause 2.1 (The Facility).
"Swingline Facility
F Commitment" means:
| (a) | in relation to an Original Swingline
Lender, the amount in the Base Currency set out opposite its name under the heading "Swingline
Facility F Commitment" in Part II of Schedule 1 (The Original Lenders) and
the amount of any other Swingline Facility F Commitment transferred to it under this Agreement,
assumed by it in accordance with Clause 2.2 (Increase) or assumed by it in accordance with
Clause 2.3 (Increase – Accordion Option); and |
| (b) | in relation to any other Swingline
Lender, the amount in the Base Currency of any Swingline Facility F Commitment transferred
to it under this Agreement, assumed by it in accordance with Clause 2.2 (Increase)
or assumed by it in accordance with Clause 2.3 (Increase – Accordion Option), |
to the extent not cancelled,
reduced or transferred by it under this Agreement.
"Swingline Facility
F Lender" means:
| (a) | an Original Swingline Facility F Lender;
or |
| (b) | any bank or financial institution,
trust, fund or other entity which has become a Swingline Facility F Lender in accordance
with Clause 2.2 (Increase), Clause 2.3 (Increase – Accordion Option)
or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Swingline Facility
F Loan" means a loan made or to be made under the Swingline Facility F or the principal amount outstanding for the time being
of that loan.
"Swingline Facility
G" means the euro multicurrency swingline loan facility made available under this Agreement as described in paragraph 2.1(b)(vii) of
Clause 2.1 (The Facility).
"Swingline Facility
G Commitment" means:
| (a) | in relation to an Original Swingline
Lender, the amount in the Base Currency set out opposite its name under the heading "Swingline
Facility G Commitment" in Part II of Schedule 1 (The Original Lenders) and
the amount of any other Swingline Facility G Commitment transferred to it under this Agreement,
assumed by it in accordance with Clause 2.2 (Increase) or assumed by it in accordance with
Clause 2.3 (Increase – Accordion Option); and |
| (b) | in relation to any other Swingline
Lender, the amount in the Base Currency of any Swingline Facility G Commitment transferred
to it under this Agreement, assumed by it in accordance with Clause 2.2 (Increase)
or assumed by it in accordance with Clause 2.3 (Increase – Accordion Option), |
to the extent not cancelled,
reduced or transferred by it under this Agreement.
"Swingline Facility
G Lender" means:
| (a) | an Original Swingline Facility G Lender;
or |
| (b) | any bank or financial institution,
trust, fund or other entity which has become a Swingline Facility G Lender in accordance
with Clause 2.2 (Increase), Clause 2.3 (Increase – Accordion Option)
or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Swingline Facility
G Loan" means a loan made or to be made under the Swingline Facility G or the principal amount outstanding for the time being
of that loan.
"Swingline Facility
H" means the euro multicurrency swingline loan facility made available under this Agreement as described in paragraph (b)(viii) of
Clause 2.1 (The Facility).
"Swingline Facility
H Commitment" means:
| (a) | in
relation to an Original Swingline Lender, the amount in the Base Currency set out opposite
its name under the heading "Swingline Facility H Commitment" in Part II of
Schedule 1 (The Original Lenders) and the amount of any other Swingline Facility H
Commitment transferred to it under this Agreement, assumed by it in accordance with Clause
2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase –
Accordion Option); and |
| (b) | in
relation to any other Swingline Lender, the amount in the Base Currency of any Swingline Facility H Commitment transferred to it under
this Agreement, assumed by it in accordance |
| | with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
to the extent not cancelled,
reduced or transferred by it under this Agreement.
"Swingline Facility
H Lender" means:
| (a) | an
Original Swingline Facility H Lender; or |
| (b) | any
bank or financial institution, trust, fund or other entity which has become a Swingline Facility
H Lender in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase –
Accordion Option) or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Swingline Facility
H Loan" means a loan made or to be made under the Swingline Facility C or the principal amount outstanding for the time being
of that loan.
"Swingline Facility
I" means the euro multicurrency swingline loan facility made available under this Agreement as described in paragraph (b)(ix) of
Clause 2.1 (The Facility).
"Swingline Facility
I Commitment" means:
| (a) | in
relation to an Original Swingline Lender, the amount in the Base Currency set out opposite
its name under the heading "Swingline Facility I Commitment" in Part II of
Schedule 1 (The Original Lenders) and the amount of any other Swingline Facility I
Commitment transferred to it under this Agreement, assumed by it in accordance with Clause
2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase –
Accordion Option); and |
| (b) | in
relation to any other Swingline Lender, the amount in the Base Currency of any Swingline
Facility I Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
to the extent not cancelled,
reduced or transferred by it under this Agreement.
"Swingline Facility
I Lender" means:
| (a) | an
Original Swingline Facility I Lender; or |
| (b) | any
bank or financial institution, trust, fund or other entity which has become a Swingline Facility
I Lender in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase –
Accordion Option) or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
"Swingline Facility
I Loan" means a loan made or to be made under the Swingline Facility I or the principal amount outstanding for the time being
of that loan.
"Swingline Facility
J" means the euro multicurrency swingline loan facility made available under this Agreement as described in paragraph (b)(x) of
Clause 2.1 (The Facility).
"Swingline Facility
J Commitment" means:
| (a) | in
relation to an Original Swingline Lender, the amount in the Base Currency set out opposite its name under the heading "Swingline
Facility J Commitment" in Part II of |
| | Schedule 1 (The Original Lenders) and the amount of any other Swingline Facility J
Commitment transferred to it under this Agreement, assumed by it in accordance with Clause
2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase –
Accordion Option); and |
| | |
| (b) | in
relation to any other Swingline Lender, the amount in the Base Currency of any Swingline
Facility J Commitment transferred to it under this Agreement, assumed by it in accordance
with Clause 2.2 (Increase) or assumed by it in accordance with Clause 2.3 (Increase
– Accordion Option), |
to the extent not cancelled,
reduced or transferred by it under this Agreement.
“Swingline Facility
J Lender” means:
| (a) | an
Original Swingline Facility J Lender; or |
| (b) | any
bank or financial institution, trust, fund or other entity which has become a Swingline Facility
J Lender in accordance with Clause 2.2 (Increase), Clause 2.3 (Increase –
Accordion Option) or Clause 26 (Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
“Swingline Facility
J Loan” means a loan made or to be made under the Swingline Facility J or the principal amount outstanding for the time being
of that loan.
“Swingline Lender”
means:
| (a) | an Original Swingline Lender; or |
| (b) | any bank or financial institution,
trust, fund or other entity which has become a Swingline Lender in accordance with Clause
2.2 (Increase), Clause 2.3 (Increase – Accordion Option) or Clause 26
(Changes to the Lenders), |
which in each case has not
ceased to be a Party as such in accordance with the terms of this Agreement.
“Swingline Loan”
means a Swingline Facility A Loan, a Swingline Facility B Loan, a Swingline Facility C Loan, a Swingline Facility D Loan, a Swingline
Facility E Loan, a Swingline Facility F Loan, a Swingline Facility G Loan, a Swingline Facility H Loan, a Swingline Facility I Loan or
a Swingline Facility J Loan.
“Swingline Rate”
means, on any day:
| (a) | in the case of a Euro Swingline Loan,
€STR; |
| (b) | in the case of a Sterling Swingline
Loan, the Daily Rate as specified in the applicable RFR Terms; |
| (c) | in the case of a U.S. Dollar Swingline
Loan, the higher of: |
| (i) | the prime commercial lending rate in
U.S. dollars announced by the U.S. Dollar Swingline Agent at the Specified Time and in force
on that day; and |
| (ii) | 0.50 per cent. per annum over the
rate per annum determined by the U.S. Swingline Agent to be the Federal Funds Rate (as published
by the Federal Reserve Bank of New York) for that day; |
| (d) | in the case of a Danish Krone Swingline
Loan, CIBOR 1 week; |
| (e) | in the case of a Norwegian Krone Swingline
Loan, NIBOR 1 week; |
| (f) | in the case of a Swedish Krona Swingline
Loan, STIBOR 1 week; and |
| (g) | in the case of a Swiss Francs Swingline
Loan, the Daily Rate as specified in the applicable RFR Terms, |
or as otherwise determined
pursuant to Clause 12.4 (Interest calculation if no Swingline
Rate – Swingline Loans).
“Swiss Francs Swingline
Loan” means a Swingline Loan denominated in Swiss Francs.
“Tangible Net Worth”
means, as at any particular time in relation to the Company, the aggregate of:
| (a) | the
amount paid up or credited as paid up on the issued share capital of the Company (other than
any shares which are expressed to be redeemable), |
plus (if a positive number)
or minus (if a negative number):
| (b) | the
amount of the consolidated reserves of the Group, |
less (but without double
counting) any amount included in the above which is attributable to:
| (i) | the value of the fixed assets as reported
under the Company’s balance sheet in accordance with IFRS; |
| (ii) | the value of intangible assets as
reported under the Company’s balance sheet in accordance with IFRS; |
| (iii) | any expenses which are prepaid by
the Company; |
| (iv) | minority interests; and |
| (v) | any dividend or other distribution
declared, recommended or made by any member of the Group, |
but ignoring any variation
in the credit or debit balance on the Group consolidated profit and loss account since the date of the then latest audited consolidated
balance sheet of the Group except to the extent reflected in any later Group consolidated profit and loss statement delivered to the
Facility Agent under Clause 22 (Information undertakings).
“TARGET Day”
means any day on which T2 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 the same).
“Term Rate Revolving
Loan” means any Revolving Loan or, if applicable, Unpaid Sum to which Schedule 13 (Term Rate Terms) applies.
“Termination Date”
means the date which is 364 days from the date of the 2023 Amendment and Restatement Effective Date (except that, if the Termination
Date would otherwise fall on a day which is not a Business Day, it will instead be the immediately preceding Business Day).
“Test Drawing”
has the meaning given to it in Clause 3.3 (Test Utilisation Request and Test Drawing).
“Test Utilisation
Request” means a utilisation request for a Test Drawing (as such term is defined in Clause 3.3 (Test Utilisation Request
and Test Drawing)).
“Total Commitments”
means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion Option), the
aggregate of the Commitments, being €1,250,000,000 at the 2023 Amendment and Restatement Effective Date.
“Total Revolving Facility
A Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Revolving Facility A Commitments, being €125,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Revolving Facility
B Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Revolving Facility B Commitments, being €187,500,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Revolving Facility
C Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Revolving Facility C Commitments, being €90,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Revolving Facility
Commitments” means subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Total Revolving Facility A Commitments, Total Revolving Facility B Commitments, the Total Revolving
Facility C Commitments, the Total Revolving Facility D Commitments, the Total Revolving Facility E Commitments, the Total Revolving Facility
F Commitments, the Total Revolving Facility G Commitments, the Total Revolving Facility H Commitments, the Total Revolving Facility I
Commitments and the Total Revolving Facility J Commitments being €1,250,000,000.00 as at the 2023 Amendment and Restatement Effective
Date.
“Total Revolving Facility
D Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Revolving Facility D Commitments, being €95,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Revolving Facility
E Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Revolving Facility E Commitments, being €152,500,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Revolving Facility
F Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Revolving Facility F Commitments, being €100,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Revolving Facility
G Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Revolving Facility G Commitments, being €100,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Revolving Facility
H Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Revolving Facility H Commitments, being €100,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Revolving Facility
I Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Revolving Facility I Commitments, being €100,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Revolving Facility
J Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Revolving Facility J Commitments, being €200,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Swingline Facility
A Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Swingline Facility A Commitments, being €125,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Swingline Facility
B Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Swingline Facility B Commitments, being €187,500,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Swingline Facility
C Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Swingline Facility C Commitments, being €90,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Swingline Facility
Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Total Swingline Facility A Commitments, the Total Swingline Facility B Commitments, the Total Swingline
Facility C Commitments, the Total Swingline Facility D Commitments, the Total Swingline Facility E Commitments, the Total Swingline Facility
F Commitments, the Total Swingline Facility G Commitments, the Total Swingline Facility H Commitments, the Total Swingline Facility I
Commitments and the Total Swingline Facility J Commitments being €1,250,000,000.00 as at the 2023 Amendment and Restatement Effective
Date..
“Total Swingline Facility
D Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Swingline Facility D Commitments, being €95,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Swingline Facility
E Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Swingline Facility E Commitments, being €152,500,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Swingline Facility
F Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Swingline Facility F Commitments, being €100,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Swingline Facility
G Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Swingline Facility F Commitments, being €100,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Swingline Facility
H Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Swingline Facility H Commitments, being €100,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Swingline Facility
I Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Swingline Facility I Commitments, being €100,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Total Swingline Facility
J Commitments” means, subject to any increase pursuant to Clause 2.2 (Increase) or Clause 2.3 (Increase – Accordion
Option), the aggregate of the Swingline Facility J Commitments, being €200,000,000.00 as at the 2023 Amendment and Restatement
Effective Date.
“Transaction Security”
means the Security created or evidenced or expressed to be created or evidenced under the Security Documents.
“Transfer Certificate”
means a certificate substantially in the form set out in Schedule
4 (Form of Transfer Certificate) 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. |
“T2” means
the real time gross settlement system operated by the Eurosystem, or any successor system.
“UCITS”
has the meaning given to it in paragraph 18.6(a) of Part I of Schedule 6 (Borrowing Base).
“UK” or “United
Kingdom” means the United Kingdom of Great Britain and Northern Ireland.
“UK Bail-In Legislation”
means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to
the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through
liquidation, administration or other insolvency proceedings).
“Unpaid Sum”
means any sum due and payable but unpaid by an Obligor under the Finance Documents.
“U.S.” and
“United States” means the United States of America.
“U.S. Bankruptcy Law”
means the United States Bankruptcy Code of 1978 (Title 11 of the United States Code) or any other United States federal or state bankruptcy,
insolvency or similar law.
“U.S. Dollar Swingline
Loan” means a Swingline Loan denominated in U.S. dollars.
“U.S. Tax Obligor”
means:
| (a) | the
Company, if it is resident for tax purposes in the US; or |
| (b) | an
Obligor some or all of whose payments under the Finance Documents are from sources within
the U.S. for U.S. federal income tax purposes. |
“USA Patriot Act”
means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Public Law 107-56 of the United States, as amended.
“Utilisation”
means a utilisation of a Facility.
“Utilisation Date”
means the date of a Utilisation, being the date on which the relevant Loan is to be made.
“Utilisation Request”
means:
| (a) | in
relation to a Revolving Loan, a notice substantially in the form set out in Part I of
Schedule 3 (Requests);
and |
| (b) | in
relation to a Swingline Loan, a notice substantially in the form set out in Part II
of Schedule 3 (Requests). |
“VAT” means:
| (a) | any
value added tax imposed by the Value Added Tax Act 1994; |
| (b) | any
tax imposed in compliance with the Council Directive of 28 November 2006 on the common
system of value added tax (EC Directive 2006/112); and |
| (c) | any
other tax of a similar nature, whether imposed in the United Kingdom or in a member state
of the European Union in substitution for, or levied in addition to, such tax referred to
in paragraphs (a) and (b) above, or imposed elsewhere. |
“Write-down and Conversion
Powers” means:
| (a) | in
relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from
time to time, the powers described as such in relation to that Bail-In Legislation in the
EU Bail-In Legislation Schedule; |
| (b) | in
relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel,
transfer or dilute shares issued by a person that is a bank or investment firm or other financial
institution or affiliate of a bank, investment firm or other financial institution, to cancel,
reduce, modify or change the form of a liability of such a person or any contract or instrument
under which that liability arises, to convert all or part of that liability into shares,
securities or obligations of that person or any other person, to provide that any such contract
or instrument is to have effect as if a right had been exercised under it or to suspend any
obligation in respect of that liability or any of the powers under that UK Bail-In Legislation
that are related to or ancillary to any of those powers; and |
| (c) | in
relation to any other applicable Bail-In Legislation: |
| (i) | any powers under that Bail-In Legislation
to cancel, transfer or dilute shares issued by a person that is a bank or investment firm
or other financial institution or affiliate of a bank, investment firm or other financial
institution, to cancel, reduce, modify or change the form of a liability of such a person
or any contract or instrument under which that liability arises, to convert all or part of
that liability into shares, securities or obligations of that person or any other person,
to provide that any such contract or instrument is to have effect as if a right had been
exercised under it or to suspend any obligation in respect of that liability or any of the
powers under that Bail-In Legislation that are related to or ancillary to any of those powers;
and |
| (ii) | any similar or analogous powers under
that Bail-In Legislation. |
(a) | Unless a contrary indication appears,
any reference in this Agreement to: |
| (i) | the “Facility Agent”,
any “Arranger”, the “Co-ordinator”, any “Finance
Party”, any “Lender”, the “€/£ Swingline Agent”,
the “U.S. Dollar Swingline Agent”, the “Swiss Francs Swingline Agent”,
any “Obligor”, any “Party”, any “Secured Party”,
an “Agent”, the “Danish Krone/Norwegian Krone/Swedish
Krona Swingline Agent”, the “Facility C Swingline Agent” or the
“Security Agent” shall be construed so as to include its successors in title,
permitted assigns and permitted transferees to, or of, its rights and/or obligations under
the Finance Documents; |
| (ii) | “assets” includes
present and future properties, revenues and rights of every description; |
| (iii) | a Lender’s “cost of funds”
in relation to its participation in a Loan is a reference to the average cost (determined
either on an actual or a notional basis) which that Lender would incur if it were to fund,
from whatever source(s) it may reasonably select, an amount equal to the amount of that
participation in that Loan for a period equal in length to the Interest Period of that Loan; |
| (iv) | an Agent’s “cost of funds”
is a reference to the average cost (determined either on an actual or a notional basis) which
that Agent would incur if it were to fund, from whatever source(s) it may reasonably
select, an amount equal to the amount referred to in paragraph (b) of Clause 32.4 (Clawback
and pre-funding); |
| (v) | a “Finance Document”
or any other agreement or instrument is a reference to that Finance Document or other agreement
or instrument as amended, novated, supplemented, extended, restated (however fundamentally
and whether or not more onerously) or replaced and includes any change in the purpose of,
any extension of or any increase in any facility or the addition of any new facility under
that Finance Document or other agreement or instrument; |
| (vi) | a “group of Lenders”
includes all the Lenders; |
| (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) | an “Interest Period”
includes each period determined under this Agreement by reference to which interest on a
Swingline Loan is calculated; |
| (ix) | a “Lender” includes
a Swingline Lender unless the context otherwise requires; |
| (x) | a “person” includes
any individual, firm, company, corporation, government, state or agency of a state or any
association, trust, joint venture, consortium, partnership or other entity (whether or not
having separate legal personality); |
| (xi) | a “regulation” includes
any regulation, rule, official directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or supranational body, agency, department
or of any regulatory, self-regulatory or other authority or organisation; |
| (xii) | “take all necessary action
to authorise” includes, in the case of the Company, complying with its obligations
under the Dutch Works Council Act (Wet op de ondernemingsraden); |
| (xiii) | a provision of law is a reference
to that provision as amended or re-enacted; |
| (xiv) | references to “the date of this
Agreement” refers to 1 July 2020; and |
| (xv) | a time of day is a reference to London
time. |
(b) | Section, Clause and Schedule headings
are for ease of reference only. |
(c) | Unless a contrary indication appears,
a term used in any other Finance Document or in any notice given under or in connection with
any Finance Document has the same meaning in that Finance Document or notice as in this Agreement. |
(d) | A Default (other than an Event of Default)
is “continuing” if it has not been remedied or waived. |
(e) | An Event of Default (other than an Event
of Default under paragraph 1 (Borrowing Base), paragraph 8 (Collateral Reports)
and paragraph 17 (Concentration Limit) of Part I of Schedule 6 (Borrowing
Base)) is “continuing” if it has not been remedied or waived. |
(f) | An Event of Default under paragraph 1
(Borrowing Base) of Part I of Schedule 6 (Borrowing Base) is “continuing”
unless and until it ceases to be continuing in accordance with paragraph 1(b) of Part I
of Schedule 6 (Borrowing Base). |
(g) | An Event of Default under paragraph 8
(Collateral Reports) and paragraph 17 (Concentration Limit) of Part I
of Schedule 6 (Borrowing Base) is “continuing” if it has not been
waived. |
(h) | A reference in this Agreement to a page or
screen of an information service displaying a rate shall include: |
| (i) | any
replacement page of that information service which displays that rate; and |
| (ii) | the
appropriate page of such other information service which displays that rate from time
to time in place of that information service, |
| and, if such page or
service ceases to be available, shall include any other page or service displaying that rate specified by the relevant Agent after
consultation with the Company. |
(i) | A reference in this Agreement to a Central
Bank Rate shall include any successor rate to, or replacement rate for, that rate. |
(j) | Any RFR Supplement relating to a currency
overrides anything relating to that currency in: |
| (i) | Schedule
14 (RFR Terms) for the applicable category of Loan; or |
| (ii) | any
earlier RFR Supplement. |
(k) | A Compounding Methodology Supplement
relating to the Daily Non-Cumulative Compounded RFR Rate overrides anything relating to that
rate in: |
| (i) | Schedule
15 (Daily Non-Cumulative Compounded RFR Rate); or |
| (ii) | any
earlier Compounding Methodology Supplement. |
(l) | The determination of the extent to which
a rate is “for a period equal in length” to an Interest Period shall disregard
any inconsistency arising from the last day of that Interest Period being determined pursuant
to the terms of this Agreement. |
1.3 | Currency symbols and definitions |
“U.S.$”,
“USD” and “U.S. dollars” denote the lawful currency of the United States of America, “£”,
“GBP” and “sterling” denote the lawful currency of the United Kingdom, “€”, “EUR”
and “euro” denote the single currency of the Participating Member States, “DKK” and “Danish
Krone” denote the lawful currency of Denmark, “NOK” and “Norwegian Krone” denote the lawful
currency of Norway, “SEK” and “Swedish Krona” denote the lawful currency of Sweden and “CHF”
and “Swiss Francs” denote the lawful currency of Switzerland.
(a) | Unless
expressly provided to the contrary in a Finance Document a person who is not a Party has
no right under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties
Act”) to enforce or to enjoy the benefit of any term of this Agreement. |
(b) | 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. |
(c) | Any
Receiver, Delegate or any person described in paragraph (b) of Clause 28.11
(Exclusion of liability) may, subject to this Clause 1.4
and the Third Parties Act, rely on any Clause of this Agreement which expressly confers rights
on it. |
SECTION 2
THE FACILITY
(a) | Subject to the terms of this Agreement: |
| (i) | the Revolving Facility A Lenders make
available to the Company a multicurrency revolving loan facility in the Base Currency or
sterling in an aggregate amount the Base Currency Amount of which is equal to the Total Revolving
Facility A Commitments; |
| (ii) | the Revolving Facility B Lenders make
available to the Company a multicurrency revolving loan facility in the Base Currency, sterling
or U.S. dollars in an aggregate amount the Base Currency Amount of which is equal to the
Total Revolving Facility B Commitments; |
| (iii) | the Revolving Facility C Lenders
make available to the Company a multicurrency revolving loan facility in the Base Currency
or Swedish Krona in an aggregate amount the Base Currency Amount of which is equal to the
Total Revolving Facility C Commitments; |
| (iv) | the Revolving Facility D Lenders make
available to the Company a multicurrency revolving loan facility in the Base Currency, sterling
or Swiss Francs in an aggregate amount the Base Currency Amount of which is equal to the
Total Revolving Facility D Commitments; |
| (v) | the Revolving Facility E Lenders make
available to the Company a multicurrency revolving loan facility in the Base Currency, sterling,
U.S. dollars or Swiss Francs in an aggregate amount the Base Currency Amount of which is
equal to the Total Revolving Facility E Commitments; |
| (vi) | the Revolving Facility F Lender makes
available to the Company a multicurrency revolving loan facility in the Base Currency, sterling,
Swiss Francs, Swedish Krona, Danish Krone or Norwegian Krone in an aggregate amount the Base
Currency Amount of which is equal to the Total Revolving Facility F Commitments; |
| (vii) | the Revolving Facility G Lender makes
available to the Company a multicurrency revolving loan facility in the Base Currency, sterling,
U.S. dollars, Swiss Francs, Swedish Krona, Danish Krone or Norwegian Krone in an aggregate
amount the Base Currency Amount of which is equal to the Total Revolving Facility G Commitments; |
| (viii) | the Revolving Facility H Lender
makes available to the Company a multicurrency revolving loan facility in the Base Currency,
sterling, Swiss Francs, Swedish Krona, Danish Krone or Norwegian Krone in an aggregate amount
the Base Currency Amount of which is equal to the Total Revolving Facility H Commitments; |
| (ix) | the Revolving Facility I Lender makes
available to the Company a multicurrency revolving loan facility in the Base Currency, sterling,
Swiss Francs, Swedish Krona, Danish Krone or Norwegian Krone in an aggregate amount the Base
Currency Amount of which is equal to the Total Revolving Facility I Commitments; and |
| (x) | the Revolving Facility J Lender makes
available to the Company a multicurrency revolving loan facility in the Base Currency, sterling,
U.S. dollars, Swiss Francs, Swedish Krona, Danish Krone or Norwegian Krone in an aggregate
amount the Base Currency Amount of which is equal to the Total Revolving Facility J Commitments. |
(b) | Subject to the terms of this Agreement: |
| (i) | the Swingline Facility A Lenders make
available to the Company (as an option under the Revolving Facility A) a multicurrency swingline
loan facility in the Base Currency or sterling in an aggregate amount the Base Currency Amount
of which is equal to the Total Swingline Facility A Commitments; |
| (ii) | the Swingline Facility B Lenders make
available to the Company (as an option under the Revolving Facility B) a multicurrency swingline
loan facility in the Base Currency, sterling or U.S. dollars in an aggregate amount the Base
Currency Amount of which is equal to the Total Swingline Facility B Commitments; |
| (iii) | the Swingline Facility C Lenders
make available to the Company (as an option under the Revolving Facility C) a multicurrency
swingline loan facility in the Base Currency or Swedish Krona in an aggregate amount the
Base Currency Amount of which is equal to the Total Swingline Facility C Commitments; |
| (iv) | the Swingline Facility D Lenders make
available to the Company (as an option under the Revolving Facility D) a multicurrency swingline
loan facility in the Base Currency, sterling or Swiss Francs in an aggregate amount the Base
Currency Amount of which is equal to the Total Swingline Facility D Commitments; |
| (v) | the Swingline Facility E Lenders make
available to the Company (as an option under the Revolving Facility E) a multicurrency swingline
loan facility in the Base Currency, sterling, U.S. dollars or Swiss Francs in an aggregate
amount the Base Currency Amount of which is equal to the Total Swingline Facility E Commitments; |
| (vi) | the Swingline Facility F Lender makes
available to the Company (as an option under the Revolving Facility F) a multicurrency swingline
loan facility in the Base Currency, sterling, Swiss Francs, Swedish Krona, Danish Krone or
Norwegian Krone in an aggregate amount the Base Currency Amount of which is equal to the
Total Swingline Facility F Commitments; |
| (vii) | the Swingline Facility G Lender makes
available to the Company (as an option under the Revolving Facility G) a multicurrency swingline
loan facility in the Base Currency, sterling, U.S. dollars, Swiss Francs, Swedish Krona,
Danish Krone or Norwegian Krone in an aggregate amount the Base Currency Amount of which
is equal to the Total Swingline Facility G Commitments; |
| (viii) | the Swingline Facility H Lender
makes available to the Company (as an option under the Revolving Facility H) a multicurrency
swingline loan facility in the Base Currency, sterling, Swiss Francs, Norwegian Krone, Swedish
Krone or Danish Krone in an aggregate amount the Base Currency Amount of which is equal to
the Total Swingline Facility H Commitments; |
| (ix) | the Swingline Facility I Lender makes
available to the Company (as an option under the Revolving Facility I) a multicurrency swingline
loan facility in the Base Currency, sterling, Swiss Francs, Norwegian Krone, Swedish Krone
or Danish Krone in an aggregate amount the Base Currency Amount of which is equal to the
Total Swingline Facility I Commitments; and |
| (x) | the Swingline Facility J Lender makes
available to the Company (as an option under the Revolving Facility J) a multicurrency swingline
loan facility in the Base Currency, sterling, U.S. dollars, Swiss Francs, Norwegian Krone,
Swedish Krone or Danish Krone in an aggregate amount the Base Currency Amount of which is
equal to the Total Swingline Facility J Commitments. |
(c) | Paragraphs (a) and (b) above
are subject to the conditions that: |
| (i) | at no time may the aggregate of the
Base Currency Amounts of all outstanding Loans exceed the Total Revolving Facility Commitments;
and |
| (ii) | at no time may the aggregate of the
Base Currency Amount of all outstanding Swingline Loans under a Facility exceed the Total
Revolving Facility A Commitments, Total Revolving Facility B Commitments, Total Revolving
Facility C Commitments, Total Revolving Facility D Commitments, Total Revolving Facility
E Commitments, Total Revolving Facility F Commitments, Total Revolving Facility G Commitments,
Total Revolving Facility H Commitments, Total Revolving Facility I Commitments or Total Revolving
Facility J Commitments (as applicable). |
(a) | The Company may by giving prior notice
to the Facility Agent (with a copy to the relevant Swingline Agent) by no later than the
date falling five Business Days after the effective date of a cancellation of: |
| (i) | the Available Commitments of a Defaulting
Lender in accordance with paragraph (g) of Clause 9.6
(Right of replacement or repayment and cancellation in relation to a single Lender);
or |
| (ii) | the Commitments of a Lender in accordance
with: |
| (A) | Clause 9.1
(Illegality); or |
| (B) | paragraph (a) of Clause 9.6
(Right of replacement or repayment and cancellation in relation to a single Lender), |
request that the Commitments
relating to any Revolving Facility (and related Swingline Facility) be increased (and the Commitments relating to that Facility shall
be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Commitments or Commitments relating
to that Revolving Facility (including the amount of the Available Commitments under the relevant Swingline Facility or the relevant Swingline
Commitments) so cancelled as follows:
| (i) | the increased Commitments (including
any Swingline Commitments) will be assumed by one or more Eligible Institutions (each an
“Increase Lender”) 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 in respect of those Commitments; |
| (ii) | 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 in respect of that part of the increased Commitments which
it is to assume; |
| (iii) | 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 in respect of that part of the increased Commitments which
it is to assume; |
| (iv) | the Commitments of the other Lenders
shall continue in full force and effect; and |
| (v) | any increase in the Commitments relating
to a Facility shall take effect on the date specified by the Company in the notice referred
to above or any later date on which the Facility |
| | Agent executes an otherwise duly completed
Increase Confirmation delivered to it by the relevant Increase Lender. |
(b) | The Facility Agent shall, subject to
paragraph (c) below, as soon as reasonably practicable after receipt by it of a duly
completed Increase Confirmation appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement, execute that Increase Confirmation. |
(c) | The Facility Agent shall only be obliged
to execute an Increase Confirmation delivered to it by an Increase Lender once it is satisfied
that it, the relevant Swingline Agent and the Security Agent have 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. |
(d) | 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 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 in accordance with this Agreement and that
it is bound by that decision to the same extent as it would have been had it been an Original
Lender. |
(e) | The Company shall promptly on demand
pay the Facility Agent and the Security Agent the amount of all costs and expenses (including
legal fees) reasonably incurred by either of them and, in the case of the Security Agent,
by any Receiver or Delegate in connection with any increase in Commitments under this Clause
2.2. |
(f) | 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 26.4
(Assignment or transfer fee) if the increase was a transfer pursuant to Clause 26.6
(Procedure for transfer) and if the Increase Lender was a New Lender. |
(g) | 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 letter between the Company and the Increase 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) | Neither the Facility Agent nor any Lender
shall have any obligation to find an Increase Lender and in no event shall any Lender whose
Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees
received by such Lender pursuant to the Finance Documents. |
(i) | Clause 26.5
(Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis
in this Clause 2.2
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”. |
2.3 | Increase – Accordion Option |
(a) | The Company may, by delivery to the Facility
Agent (with a copy to the relevant Swingline Agent) of a duly completed Accordion Increase
Request, request that the Total Revolving Facility A Commitments, Total Revolving Facility
B Commitments, Total Revolving Facility C Commitments, Total Revolving Facility D Commitments, |
| Total Revolving Facility E Commitments, Total Revolving Facility F Commitments, Total Revolving
Facility G Commitments, Total Revolving Facility H Commitments, Total Revolving Facility
I Commitments and/or Total Revolving Facility J Commitments be increased (and the Total Revolving
Facility Commitments shall be so increased) as described in, and in accordance with, this
Clause 2.3. |
(b) | The increase in the Total Revolving Facility
Commitments requested in an Accordion Increase Request is subject to the following conditions: |
| (i) | the Company specifies the Revolving
Facility (or Revolving Facilities) whose Revolving Facility Commitment is to be increased
(and if more than one Facility, the amount per Facility); |
| (ii) | the increased Revolving Facility Commitment
will be assumed by one or more existing Lenders in relation to that Facility willing to provide
such increase and/or by one or more other Eligible Institutions (each an “Accordion
Increase Lender”) selected by the Company which shall become a Party as a Lender
to that Facility; |
| (iii) | the Facility Agent receives the Accordion
Increase Request no later than 10 Business Days before the proposed Accordion Increase Date; |
| (iv) | the Accordion Increase Amount is a
minimum amount of €25,000,000 or any lower amount agreed to by the Facility Agent and
a maximum (in aggregate) of €500,000,000; |
| (v) | the Total Revolving Facility Commitments,
after the increase, will not exceed €1,750,000,000; |
| (vi) | no amendment shall be made to the
Termination Date; |
| (vii) | no Default is continuing or would
result from the proposed increase in a Revolving Facility (and a related Swingline Facility),
in each case on the date of the Accordion Increase Request or the Accordion Increase Date; |
| (viii) | in respect of each existing Lender
which has agreed to increase its Revolving Facility Commitment in relation to that Facility: |
| (A) | that Lender has agreed to increase
its related Swingline Commitment by the same amount or, if that Lender is not a Swingline
Lender under that Facility, the Related Lender of that Lender has agreed to increase its
Swingline Commitment under that Facility by the same amount; and |
| (B) | the Facility Agent has received and
executed a duly completed Accordion Increase Confirmation from that Lender and (if applicable)
its Related Lender in respect of each such increased Revolving Facility Commitment and Swingline
Commitment; |
| (ix) | in respect of each Accordion Increase
Lender which is not already a Lender under that Facility on the date of the Accordion Increase
Confirmation: |
| (A) | that Accordion Increase Lender has
agreed to accede to this Agreement in respect of an additional Revolving Facility Commitment
and a Swingline Commitment in relation to that Facility in the same amount, or an Affiliate
or branch of that Accordion Increase Lender has agreed to accede to this Agreement in respect
of a related Swingline Commitment in the same amount as the additional Revolving Facility
Commitment in relation to that Facility of that Accordion Increase Lender; |
| (B) | the Facility Agent has received and
executed a duly completed Accordion Increase Confirmation from that Accordion Increase Lender
and (if applicable) its Affiliate or branch in respect of each such additional Revolving
Facility Commitment in relation to that Facility and a related Swingline Commitment; and |
| (C) | 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
Increase Lender, the completion of which the Facility Agent shall promptly notify to the
Company and the Accordion Increase Lender; and |
| (x) | the Accordion Increase Lender(s) agree(s) to
assume additional Commitments in an aggregate amount equal to the Accordion Increase Amount. |
(c) | Each Obligor hereby acknowledges that
its obligations under the Finance Documents, including the guarantee and indemnity of the
Guarantor and all Security created by the Company pursuant to the Security Documents, shall
extend and apply to the Commitments as increased by this Clause 2.3 and shall, save as amended
by this Clause 2.3, continue in full force and effect. |
(d) | The increase in the Total Revolving Facility
Commitments and the assumption of the additional Commitments by the Accordion Increase Lenders
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 Increase Request; and |
| (ii) | the date on which all of the conditions
described in paragraph (b) above have been met. |
(e) | On and from the Accordion Increase Date: |
| (i) | the Total Revolving Facility Commitments
and the Total Swingline Facility Commitments will each be increased in an aggregate amount
by the Base Currency Amount equal to the Accordion Increase Amount; |
| (ii) | each Accordion Increase Lender will
assume all the obligations of a Lender in respect of the additional Commitments in relation
to the relevant Facility specified in the Accordion Increase Confirmation of that Accordion
Increase Lender; |
| (iii) | each of the Obligors and each Accordion
Increase Lender in relation to the relevant Facility 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 Obligors and the Accordion Increase Lender would have assumed
and/or acquired had the Accordion Increase Lender been an Original Lender in relation to
the relevant Facility; |
| (iv) | each Accordion Increase Lender which
is not a Lender in relation to the relevant Facility immediately prior to the Accordion Increase
Date shall become a Party as a “Lender” in relation to the relevant Facility and
any such Accordion Increase Lender and each of the other Finance Parties shall assume obligations
towards one another and acquire rights against one another as that Accordion Increase Lender
and those Finance Parties would have assumed and/or acquired had the Accordion Increase Lender
been an Original Lender in relation to the relevant Facility; and |
| (v) | the Commitments of the other Lenders
shall continue in full force and effect. |
(f) | The Facility Agent shall, as soon as
reasonably practicable after the Accordion Increase Date, notify the Company, the relevant
Swingline Agent and the Finance Parties of the Accordion Increase Amount. |
(g) | Each Accordion Increase 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 Accordion Increase Date and that it is bound by that decision to the same extent
as it would have been had it been an Original Lender. |
(h) | The Company shall, on the Accordion Increase
Date, pay to the Facility Agent (for its own account) a fee in an amount equal to the fee
which would be payable under Clause 26.4 (Assignment or transfer fee) if the increase
was a transfer pursuant to Clause 26.6 (Procedure for transfer) and the Company shall
promptly on demand pay to the Facility Agent the amount of all costs and expenses (including
legal fees) reasonably incurred by it in connection with any increase in the Facility under
this Clause 2.3. |
(i) | The Company may pay to an Accordion Increase
Lender a fee in the amount and at the times agreed between the Company and the Accordion
Increase Lender in a letter between the Company and the Accordion Increase Lender setting
out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred
to in this paragraph (i). |
(j) | No Lender shall be under any obligation
to participate in any increase requested by the Company pursuant to this Clause 2.3 and no
Lender shall be under any obligation to execute any Accordion Increase Confirmation. |
(k) | Clause 26.5 (Limitation of responsibility
of Existing Lenders) shall apply mutatis mutandis in this Clause 2.3 in relation
to an Accordion Increase Lender as if references in that Clause to: |
| (i) | an “Existing Lender”
were references to all the Lenders immediately prior to the relevant Accordion Increase Date; |
| (ii) | the “New Lender”
were references to that Accordion Increase Lender; and |
| (iii) | a “re-transfer”
and “re-assignment” were references to respectively a “transfer”
and “assignment”. |
2.4 | Finance Parties’ rights and obligations |
(a) | The obligations of each Finance Party
under the Finance Documents are several. 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. No Finance Party is responsible for the obligations of any other Finance
Party under the Finance Documents. |
(b) | The rights of each Finance Party under
or in connection with the Finance Documents are separate and independent rights and any debt
arising under the Finance Documents to a Finance Party from an Obligor is a separate and
independent debt in respect of which a Finance Party shall be entitled to enforce its rights
in accordance with paragraph (c) below. The rights of each Finance Party include any
debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt,
any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s
participation in a Facility or its role under a Finance Document (including any such amount
payable to the Facility Agent on its behalf) is a debt owing to that Finance Party by that
Obligor. |
(c) | A Finance Party may, except as specifically
provided in the Finance Documents, separately enforce its rights under or in connection with
the Finance Documents. |
(a) | A Lender (the “Appointing Lender”)
may, in relation to the relevant Facility, designate an Affiliate or substitute Facility
Office (a “Designated Entity”) as its Facility Office for the purpose of
participating in Loans in that Facility to the Company in a particular currency. |
(b) | An Affiliate or Facility Office of a
Lender may be designated for the purposes of paragraph (a) above by: |
| (i) | appearing in the list of Designated
Entities in Part I of Schedule 12 (Designated Entities) and signing this Agreement
as a Designated Entity; or |
| (ii) | acceding as a Designated Entity by
signing a Designated Entity Accession Agreement. |
(c) | A Designated Entity does not have any
Commitment and does not have any obligations under this Agreement prior to such Designated
Entity participating in a Loan. |
(d) | When a Designated Entity participates
in a Loan: |
| (i) | subject to paragraph (e) below,
it shall be entitled to all the rights of a Lender in relation to that Facility and have
the corresponding obligations of a Lender in relation to that Facility, in each case under
the Finance Documents relating to its participation in any such Loans; and |
| (ii) | the other parties to the Finance Documents
shall treat the Designated Entity as a Lender in relation to that Facility for these purposes. |
| The Designated Entity is a
party to this Agreement for these purposes. |
(e) | For the purposes only of voting in connection
with any Finance Document, the participation of a Designated Entity in any outstanding Loans
in relation to that Facility shall be deemed to be a participation of the Appointing Lender
in relation to that Facility. |
(f) | Any notice or communication to be made
to a Designated Entity shall be served directly on the Designated Entity at the address supplied
to the Facility Agent by the Appointing Lender where the Appointing Lender or Designated
Entity reasonably requests or, if no such request has been made, shall be delivered to the
Appointing Lender in accordance with this Agreement. |
(g) | A Designated Entity may assign or transfer
any of its rights and obligations under this Agreement in respect of its participation in
any Loan (and the Appointing Lender may assign or transfer any corresponding Commitment)
in accordance with Clause 26 (Changes to the Lenders). |
(h) | Paragraphs (d) and (g) above
shall also apply to any Lenders which are specified in Schedule 1 (The Original Lenders)
as lending in relation to the same Facility for a particular currency. |
(a) | The Company shall apply all amounts borrowed
by it under each Revolving Facility and each Swingline Facility towards: |
| (i) | financing unsettled amounts in connection
with the settlement of transactions in securities and other items processed through the Clearing
System of the Company as a central counterparty in accordance with the Rules; |
| (ii) | financing any other liability or liquidity
requirement of the Company incurred in the operation of the Clearing System (including the
settlement of transactions but excluding the corporate overheads of the Company); and |
| (iii) | (in the case of amounts borrowed
by it under a Revolving Facility only) towards refinancing any other Loan. |
| (b) | Without limiting paragraph (a) above: |
| (i) | a Swingline Loan may not be applied
in repayment or prepayment of another Loan; and |
| (ii) | a Revolving Loan may, and may only,
be applied in repayment or prepayment of another Loan if: |
| (A) | the Repayment Date of that Loan is
not more than 30 days after the Utilisation Date of the Loan being repaid or prepaid (or,
if earlier, the Utilisation Date of any earlier Loan repaid or prepaid (directly or indirectly
through one or more subsequent Loans) with the proceeds of the Loan being repaid or prepaid);
or |
| (B) | the Facility Agent consents, acting
on the instructions of all the Lenders. |
| No Finance Party is bound
to monitor or verify the application of any amount borrowed pursuant to this Agreement. |
3.3 | Test Utilisation Request and Test
Drawing |
| The Company may deliver a
Test Utilisation Request for a Swingline Loan or a Revolving Loan (as specified in the Test Utilisation Request) in order to determine
the operational capabilities of the Lenders to make a Loan (a “Test Drawing”). A Test Utilisation Request must satisfy
the requirements of a Utilisation Request for a Swingline Loan or a Revolving Loan (as applicable) other than Clause 3.1 (Purpose),
paragraph (c) of Clause 5.3 (Term, currency and amount) or (as applicable) paragraph (c) of Clause 6.3 (Term, currency
and amount) and the amount of the Test Drawing must be no less than a minimum amount of €500,000 (or its equivalent in any Optional
Currency) or if less the Available Facility in relation to the Facility applicable to that Revolving Loan or Swingline Loan. The Repayment
Date shall be at least one day and not more than five Swingline Business Days and a Test Drawing shall not to be made more often than
once every six Months. |
4. | Conditions
of Utilisation |
4.1 | Initial conditions precedent |
(a) | The Company may not deliver a Utilisation
Request unless the Facility Agent has received all of the documents and other evidence listed
in Schedule 2 (Conditions
precedent to initial Utilisation) in form and substance satisfactory to the Facility
Agent. The Facility Agent shall notify the Company and the Lenders promptly upon being so
satisfied. |
(b) | Other than to the extent that the Majority
Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives
the notification described in paragraph (a) above, the Lenders authorise (but do not
require) the Facility Agent to give that notification. The Facility Agent shall not be liable
for any damages, costs or losses whatsoever as a result of giving any such notification. |
4.2 | Further conditions precedent |
(a) | The Lenders will only be obliged to comply
with Clause 5.4
(Lenders’ participation in Revolving Loans) if: |
| (i) | on the date of the Utilisation Request,
the Company has delivered: |
| (A) | a Required Value Notice; and |
| (B) | a CSV Collateral File, |
| in each case, in accordance
with paragraph 6 (Required Value Notice and CSV Collateral File) of Part I of Schedule 6 (Borrowing Base); and |
| (ii) | on the date of the Utilisation Request
and on the proposed Utilisation Date: |
| (A) | in the case of a Rollover Loan, no
notice of acceleration has been provided in accordance with Clause 25.15 (Acceleration)
and, in the case of any other Revolving Loan, no Default is continuing or would result from
the proposed Revolving Loan; and |
| (B) | the Repeating Representations to be
made by each Obligor are true in all material respects; and |
| (iii) | on the proposed Utilisation Date,
the Collateral Monitor has delivered to the Security Agent and the Facility Agent (and, if
applicable, the relevant Swingline Agent) a Collateral Report pursuant to and in accordance
with paragraph 7 (Utilisation Date disbursement procedures – Revolving Loans and
Swingline Loans) of Part I of Schedule 6 (Borrowing Base). |
(b) | Where a Lender has made its participation
in a Revolving Loan available to the Facility Agent, the Facility Agent will only be obliged
to make that participation available to the Company if the Company has transferred Eligible
Collateral to the extent and in the manner required under and in accordance with paragraph
7 (Utilisation Date disbursement procedures – Revolving Loans and Swingline Loans)
of Part I of Schedule 6 (Borrowing Base) and the Company has otherwise complied
with the provisions set out in Schedule 6 (Borrowing Base). |
4.3 | Conditions relating to Optional Currencies |
(a) | A currency will constitute an Optional
Currency in relation to a Loan if: |
| (i) | it is readily available in the amount
required and freely convertible into the Base Currency in the wholesale market for that currency
at the applicable Specified Time and the Utilisation Date for that Loan; and |
| (ii) | in relation to Revolving Facility
A or Swingline Facility A, it is requested in sterling; |
| (iii) | in relation to Revolving Facility
B or Swingline Facility B, it is requested in sterling or U.S. dollars; |
| (iv) | in relation to Revolving Facility
C or Swingline Facility C, it is requested in Swedish Krona; |
| (v) | in relation to Revolving Facility D
or Swingline Facility D, it is requested in sterling or Swiss Francs; |
| (vi) | in relation to Revolving Facility
E or Swingline Facility E, it is requested in sterling, U.S. dollars or Swiss Francs; |
| (vii) | in relation to Revolving Facility
F or Swingline Facility F, it is requested in sterling, Swiss Francs, Danish Krone, Norwegian
Krone or Swedish Krona; |
| (viii) | in relation to Revolving Facility
G or Swingline Facility G, it is requested in sterling, U.S. dollars, Swiss Francs, Danish
Krone, Norwegian Krone or Swedish Krona; |
| (ix) | in relation to Revolving Facility
H or Swingline Facility H, it is requested in sterling, Swiss Francs, Danish Krone, Norwegian
Krone or Swedish Krona; |
| (x) | in relation to Revolving Facility I
or Swingline Facility I, it is requested in sterling, Swiss Francs, Danish Krone, Norwegian
Krone or Swedish Krona; |
| (xi) | in relation to Revolving Facility
J or Swingline Facility J, it is requested in sterling, U.S. dollars, Swiss Francs, Danish
Krone, Norwegian Krone or Swedish Krona; or |
| (xii) | in relation to any Revolving Facility
or any Swingline Facility, it has been approved by the relevant Agent (acting on the instructions
of all the Revolving Lenders or all the Swingline Lenders (as the case may be)) in relation
to that Facility on or prior to receipt by the relevant Agent of the relevant Utilisation
Request for that Loan. |
(b) | If the relevant Agent has received a
written request from the Company for a currency to be approved under paragraph (a)(xii) above,
the relevant Agent will confirm to the Company by the applicable Specified Time: |
| (i) | whether or not the relevant Lenders
have granted their approval; and |
| (ii) | if approval has been granted, the
minimum amount (and, if required, integral multiples) for any subsequent Utilisation in that
currency. |
4.4 | Maximum number of Loans |
(a) | The Company may not deliver a Utilisation
Request if as a result of the proposed Utilisation: |
| (i) | more than 15 Revolving Loans would
be outstanding; or |
| (ii) | more than 15 Swingline Loans would
be outstanding. |
(b) | Any Loan made by a single Lender under
Clause 7.2 (Unavailability
of a currency) shall not be taken into account in this Clause 4.4. |
SECTION 3
UTILISATION
5. | Utilisation
– Revolving Loans |
5.1 | Delivery of a Utilisation Request
for Revolving Loans |
(a) | The Company may utilise a Revolving Facility
by delivery to the Facility Agent of a duly completed Utilisation Request not later than
the applicable Specified Time. |
(b) | The Company shall send a copy of each
Utilisation Request to the Security Agent. |
5.2 | Completion of a Utilisation Request
for Revolving Loans |
(a) | Each Utilisation Request for a Revolving
Loan is irrevocable and will not be regarded as having been duly completed unless: |
| (i) | it identifies the Revolving Facility
to be utilised; |
| (ii) | the proposed Utilisation Date is a
Business Day within the Availability Period; |
| (iii) | the proposed Repayment Date complies
with Clause 5.3 (Term, currency and amount); |
| (iv) | the term, currency and amount of the
Utilisation comply with Clause 5.3
(Term, currency and amount); |
| (v) | the proposed Interest Period complies
with Clause 11
(Interest Periods); and |
| (vi) | it specifies the Company’s account
and bank (which must be in the principal financial centre of the country of the currency
of the Utilisation or, in the case of euro, the principal financial centre of a Participating
Member State in which banks are open for general business on that day or London) to which
the proceeds of the Utilisation are to be credited. |
(b) | Only one Loan may be requested in each
Utilisation Request. |
5.3 | Term, currency and amount |
(a) | The proposed Repayment Date of the Revolving
Loan: |
| (ii) | is at least one Business Day and not
more than 30 days after the Utilisation Date of the Loan, subject to Clause 11.1 (Interest
Periods for Revolving Loans) in respect of a RFR Revolving Loan; |
| (iii) | is not later than the Termination
Date; and |
| (iv) | (where that Loan is to be applied
in repayment or prepayment of another Loan) is not more than 30 days after the Utilisation
Date of the Loan being repaid or prepaid (or, if earlier, the Utilisation Date of any earlier
Loan repaid or prepaid (directly or indirectly through one or more subsequent Loans) with
the proceeds of the Loan being repaid or prepaid), |
| or, in each case, as otherwise
agreed between the Company and the Facility Agent (acting on the instructions of all the Lenders). |
(b) | The currency specified in a Utilisation
Request for a Revolving Loan must be the Base Currency or an Optional Currency applicable
for that Facility. |
(c) | The amount of the proposed Revolving
Loan must be: |
| (i) | if the currency selected is the Base
Currency, a minimum of €5,000,000 or, if less, the Available Facility in relation to
the Facility applicable to that Revolving Loan; or |
| (ii) | if the currency selected is sterling,
a minimum of £5,000,000 or, if less, the Available Facility in relation to the Facility
applicable to that Revolving Loan; or |
| (iii) | if the currency selected is U.S.
dollars, a minimum of U.S.$5,000,000 or, if less, the Available Facility in relation to the
Facility applicable to that Revolving Loan; or |
| (iv) | if the currency selected is Danish
Krone a minimum of DKK35,000,000 or, if less, the Available Facility in relation to the Facility
applicable to that Revolving Loan; or |
| (v) | if the currency selected is Norwegian
Krone a minimum of NOK50,000,000 or, if less, the Available Facility in relation to the Facility
applicable to that Revolving Loan; or |
| (vi) | if the currency selected is Swedish
Krona a minimum of SEK50,000,000 or, if less, the Available Facility in relation to the Facility
applicable to that Revolving Loan; or |
| (vii) | if the currency selected is Swiss
Francs a minimum of CHF5,000,000 or, if less, the Available Facility in relation to the Facility
applicable to that Revolving Loan; or |
| (viii) | if the currency selected is an Optional
Currency other than sterling, U.S. dollars, Danish Krone, Norwegian Krone, Swedish Krona
or Swiss Francs, the minimum amount (and, if required, integral multiple) specified by the
relevant Agent pursuant to paragraph (b)(ii) of Clause 4.3
(Conditions relating to Optional Currencies) or, if less, the Available Facility in
relation to the Facility applicable to that Revolving Loan; and |
| (ix) | in any event, such that its Base Currency
Amount is less than or equal to the Available Facility in relation to the Facility applicable
to that Revolving Loan. |
5.4 | Lenders’ participation in Revolving
Loans |
(a) | If the conditions set out in this Agreement
have been met, and subject to Clause 8.1
(Repayment of Revolving Loans), each Revolving Lender in relation to the applicable
Facility shall make its participation in each Revolving Loan available to the Facility Agent
by the applicable Specified Time on the Utilisation Date through its Facility Office. |
(b) | The amount of each Lender’s participation
in each Loan will, in relation to the applicable Facility, be equal to the proportion borne
by its Available Commitment in relation to that Facility to the Available Facility in relation
to that Facility immediately prior to making the Loan. |
(c) | The Facility Agent shall determine the
Base Currency Amount of each Revolving Loan which is to be made in an Optional Currency and
shall notify each relevant Revolving Lender of the amount, the currency and the Base Currency
Amount of each Revolving Loan, the amount of its participation in that Loan and, if different,
the amount of that participation to be made available in cash, in each case by the applicable
Specified Time. |
5.5 | Cancellation of Revolving Facility
Commitments |
| The Revolving Facility Commitments
which, at that time, are unutilised (taking into account a utilisation of a Revolving Facility by way of a Swingline Loan) shall be immediately
cancelled at the end of the Availability Period. |
6. | Utilisation
– Swingline Loans |
6.1 | Delivery of a Utilisation Request
for Swingline Loans |
(a) | The Company may utilise a Swingline Facility
by delivery of a duly completed Utilisation Request: |
| (i) | (in the case of a U.S. Dollar Swingline
Loan) to the U.S. Dollar Swingline Agent at the address notified by the U.S. Dollar Swingline
Agent for this purpose; |
| (ii) | (in the case of a Euro Swingline Loan
or a Sterling Swingline Loan or any Optional Currency Swingline Loan) to the €/£
Swingline Agent at the address notified by the €/£ Swingline Agent for this purpose; |
| (iii) | (in the case of a Swiss Francs Swingline
Loan) to the Swiss Francs Swingline Agent at the address notified by the Swiss Francs Swingline
Agent for this purpose; |
| (iv) | (in the case of a Danish Krone/Norwegian
Krone/Swedish Krona Swingline Loan (other than a Swedish Krona Swingline Loan in respect
of Swingline Facility C) to the Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent
at the address notified by the Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent
for this purpose; and |
| (v) | (in the case of a Swingline Facility
C Nordic Loan) to the Facility C Swingline Agent at the address notified by the Facility
C Swingline Agent for this purpose, |
in each case, not later than
the applicable Specified Time.
(b) | The Company shall send a copy of each
Utilisation Request under a Swingline Facility to the Facility Agent and the Security Agent. |
6.2 | Completion of a Utilisation Request
for Swingline Loans |
(a) | Each Utilisation Request for a Swingline
Loan is irrevocable and will not be regarded as having been duly completed unless: |
| (i) | it identifies the Swingline Facility
to be utilised; |
| (ii) | it specifies that it is for a U.S.
Dollar Swingline Loan, a Euro Swingline Loan, a Sterling Swingline Loan, a Danish Krone Swingline
Loan, a Norwegian Krone Swingline Loan, a Swedish Krona Swingline Loan, a Swiss Francs Swingline
Loan, a Swingline Facility F Loan or an Optional Currency Swingline Loan; |
| (iii) | the proposed Utilisation Date is
a Swingline Business Day within the Availability Period; |
| (iv) | the proposed Repayment Date complies
with Clause 6.3 (Term, currency and amount); |
| (v) | the term, currency and amount of the
Utilisation comply with Clause 6.3 (Term, currency and amount); |
| (vi) | the proposed Interest Period complies
with Clause 11.2 (Interest Periods for Swingline Loans); and |
| (vii) | it specifies the Company’s
account and bank (which must be in the principal financial centre of the country of the currency
of the Utilisation or, in the case of euro, the principal financial centre of a Participating
Member State in which banks are open for general business on that day or London or, in the
case of a U.S. Dollar Swingline Loan only, must be located in New York) to which the proceeds
of the Utilisation are to be credited. |
(b) | Only one Loan may be requested in each
Utilisation Request. |
6.3 | Term, currency and amount |
(a) | The proposed Repayment Date of the Swingline
Loan: |
| (i) | is a Swingline Business Day; |
| (ii) | is at least one day, and not more
than five Swingline Business Days, after the proposed Utilisation Date; and |
| (iii) | is not later than the Termination
Date. |
(b) | The currency specified in a Utilisation
Request for a Swingline Loan must be the Base Currency or an Optional Currency applicable
to that Facility. |
(c) | The amount of the proposed Swingline
Loan must be: |
| (i) | in the case of a Euro Swingline Loan,
a minimum of €5,000,000 or, if less, the Available Swingline Facility; or |
| (ii) | in the case of a Sterling Swingline
Loan, a minimum of £5,000,000 or, if less, the Available Swingline Facility; or |
| (iii) | in the case of a U.S. Dollar Swingline
Loan, a minimum of U.S.$5,000,000 or, if less, the Available Swingline Facility; or |
| (iv) | in the case of a Danish Krone Swingline
Loan, a minimum of DKK5,000,000 or, if less, the Available Facility in relation to the Facility
applicable to that Swingline Loan; or |
| (v) | in the case of a Norwegian Krone Swingline
Loan, a minimum of NOK5,000,000 or, if less, the Available Facility in relation to the Facility
applicable to that Swingline Loan; or |
| (vi) | in the case of a Swedish Krona Swingline
Loan, a minimum of SEK5,000,000 or, if less, the Available Facility in relation to the Facility
applicable to that Swingline Loan Facility; or |
| (vii) | in the case of a Swiss Francs Swingline
Loan, a minimum of CHF5,000,000 or, if less, the Available Facility in relation to the Facility
applicable to that Swingline Loan; or |
| (viii) | if the currency selected is an Optional
Currency Swingline Loan, the minimum amount specified by the relevant Agent pursuant to paragraph
(b)(ii) of Clause 4.3 (Conditions relating to Optional Currencies) or, if less,
the Available Swingline Facility applicable to that Swingline Facility; and |
| (ix) | in any event, such that its Base Currency
Amount is less than or equal to the Available Swingline Facility applicable to that Swingline
Facility. |
6.4 | Lenders’ participation in Swingline
Loans |
(a) | If the conditions set out in this Agreement
have been met, each Swingline Lender shall make its participation in each Swingline Loan
available by the applicable Specified Time on the Utilisation Date: |
| (i) | (in the case of a U.S. Dollar Swingline
Loan) to the U.S. Dollar Swingline Agent through that Swingline Lender’s Facility Office
in New York City or through its or an Affiliate’s Facility Office as notified to the U.S.
Dollar Swingline Agent in writing from time to time; |
| (ii) | (in the case of a Euro Swingline Loan
or a Sterling Swingline Loan or an Optional Currency Swingline Loan) to the €/£
Swingline Agent through that Swingline Lender’s Facility Office in London or through its
or an Affiliate’s Facility Office as notified to the €/£ Swingline Agent in writing
from time to time; |
| (iii) | (in the case of a Swiss Francs Swingline
Loan) to the Swiss Francs Swingline Agent through that Swingline Lender’s Facility
Office in London or through its or an Affiliate’s Facility Office as notified to the Swiss
Francs Swingline Agent in writing from time to time; |
| (iv) | (in the case of a Danish Krone Swingline
Loan, a Norwegian Krone Swingline Loan or a Swedish Krona Swingline Loan (other than a Swedish
Krona Swingline Loan in respect of Swingline Facility C) to the Danish Krone/Norwegian Krone/Swedish
Krona Swingline Agent through that Swingline Lender’s Facility Office in London or through
its or an Affiliate’s Facility Office as notified to the Danish Krone/Norwegian Krone/Swedish
Krona Swingline Agent in writing from time to time; and |
| (v) | (in the case of a Swingline Facility
C Nordic Loan) to the Facility C Swingline Agent through that Swingline Lender’s Facility
Office in Stockholm or through its or an Affiliate’s Facility Office as notified to
the Facility C Swingline Agent in writing from time to time. |
(b) | The Swingline Lenders will only be obliged
to comply with paragraph (a) above if: |
| (i) | on the date of the Utilisation Request,
the Company has delivered: |
| (A) | a Required Value Notice; and |
| (B) | a CSV Collateral File, |
| in each case, in accordance
with paragraph 6 (Required Value Notice and CSV Collateral File) of Part I of Schedule 6 (Borrowing Base); and |
| (ii) | on the date of the Utilisation Request
and on the proposed Utilisation Date: |
| (A) | no Default is continuing or would result
from the proposed Utilisation; and |
| (B) | the Repeating Representations to be
made by each Obligor are true in all material respects; and |
| (iii) | on the proposed Utilisation Date
the Collateral Monitor has delivered to the Security Agent and the Facility Agent and the
relevant Swingline Agent a Collateral Report pursuant to and in accordance with paragraph
7 (Utilisation Date disbursement procedures – Revolving Loans and Swingline Loans)
of Part I of Schedule 6 (Borrowing Base); and |
| (iv) | where a Lender has made its participation
in a Swingline Loan available to the relevant Agent, that Agent will only be obliged to make
that participation available to the Company if the Company has transferred Eligible Collateral
to the extent and in the manner required under and in accordance with paragraph 7 (Utilisation
Date disbursement procedures – Revolving Loans and Swingline Loans) of Part I
of Schedule 6 (Borrowing Base) and the Company has otherwise complied with the provisions
set out in Schedule 6 (Borrowing Base). |
(c) | The amount of each Swingline Lender’s
participation in each Swingline Loan will in relation to the applicable Swingline Facility,
be equal to the proportion borne by its Available Commitment under that Swingline Facility
to the Available Swingline Facility in relation to that Swingline Facility immediately prior
to making the Swingline Loan, adjusted to take account of any limit applying under Clause
6.5 (Relationship
with a Revolving Facility). |
(d) | The U.S. Dollar Swingline Agent shall
determine the Base Currency Amount of each U.S. Dollar Swingline Loan and shall notify each
Swingline Lender of the amount, currency and the Base Currency Amount of each U.S. Dollar
Swingline Loan and the amount of its participation in that Swingline Loan, in each case by
the applicable Specified Time. |
(e) | The €/£ Swingline Agent shall
determine the Base Currency Amount of each Sterling Swingline Loan, Euro Swingline Loan and
Optional Currency Swingline Loan and shall notify each Swingline Lender of the amount, currency
and the Base Currency Amount of each Sterling Swingline Loan, Euro |
| Swingline Loan and Optional
Currency Swingline Loan and the amount of its participation in that Swingline Loan, in each
case by the applicable Specified Time. |
(f) | The Swiss Francs Swingline Agent shall
determine the Base Currency Amount of each Swiss Francs Swingline Loan and shall notify each
Swingline Lender of the amount, currency and the Base Currency Amount of each Swiss Francs
Swingline Loan and the amount of its participation in that Swingline Loan, in each case by
the applicable Specified Time. |
(g) | The Danish Krone/Norwegian Krone/Swedish
Krona/Swiss Francs Swingline Agent shall determine the Base Currency Amount of each Danish
Krone Swingline Loan/Norwegian Krone Swingline Loan/Swedish Krona Swingline Loan and shall
notify each Swingline Lender of the amount, currency and the Base Currency Amount of each
Danish Krone Swingline Loan/Norwegian Krone Swingline Loan/Swedish Krona Swingline Loan and
the amount of its participation in that Swingline Loan, in each case by the applicable Specified
Time. |
(h) | The Facility C Swingline Agent shall
determine the Base Currency Amount of each Swingline Facility C Nordic Loan and shall notify
each Swingline Lender of the amount, currency and the Base Currency Amount of each Swingline
Facility C Nordic Loan and the amount of its participation in that Swingline Facility C Nordic
Loan, in each case by the applicable Specified Time. |
6.5 | Relationship with a Revolving Facility |
(a) | This Clause 6.5
applies when a Swingline Loan is outstanding or is to be borrowed. |
(b) | A Revolving Facility may be used by way
of a Swingline Loan. Each of the Swingline Facility A, Swingline Facility B, Swingline Facility
C, Swingline Facility D, Swingline Facility E, Swingline Facility F, Swingline Facility G,
Swingline Facility H, Swingline Facility I or Swingline Facility J is not independent of
a Revolving Facility A, Revolving Facility B, Revolving Facility C, Revolving Facility D,
Revolving Facility E, Revolving Facility F, Revolving Facility G, Revolving Facility H, Revolving
Facility I or Revolving Facility J (as applicable). |
(c) | Notwithstanding any other term of this
Agreement, in relation to each Facility, a Lender under that Facility is only obliged to
participate in a Revolving Loan or a Swingline Loan in relation to that Facility to the extent
that it would not result in the aggregate Base Currency Amount of its participation and that
of the Related Lender (if any) of that Lender in the Revolving Loans and the Swingline Loans
in relation to that Facility exceeding its Overall Commitment in relation to that Facility. |
6.6 | Cancellation of Swingline Commitments |
| The Swingline Commitments
which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period. |
(a) | Each Swingline Agent may perform its
duties in respect of the relevant Swingline Facility through an Affiliate acting as its agent. |
(b) | Notwithstanding any other term of this
Agreement and without limiting the liability of any Obligor under the Finance Documents: |
| (i) | each
Lender shall (in proportion to its share of the Total Revolving Facility Commitments or, if the Total Revolving Facility Commitments
are then zero, to its share of the Total Revolving Facility Commitments immediately prior to their reduction to zero) pay to or indemnify
the €/£ Swingline Agent, within three Business Days of demand, for or against any cost, loss or |
| | liability (including,
without limitation, for negligence or any other category of loss whatsoever) incurred by
that €/£ Swingline Agent or its Affiliate (other than by reason of that €/£
Swingline Agent’s or its Affiliate’s gross negligence or wilful misconduct) or, in the case
of any cost, loss or liability pursuant to Clause 32.11
(Disruption to payment systems etc.) notwithstanding that €/£ Swingline
Agent’s or its Affiliate’s negligence, gross negligence or any other category
of liability whatsoever but not including any claim based on the fraud of that €/£
Swingline Agent or its Affiliate in acting as a €/£ Swingline Agent under the
Finance Documents (unless that €/£ Swingline Agent or its Affiliate has been reimbursed
by an Obligor pursuant to a Finance Document); |
| (ii) | each Revolving Facility B Lender shall
(in proportion to its share of the Total Revolving Facility B Commitments or, if the Total
Revolving Facility B Commitments are then zero, to its share of the Total Revolving Facility
B Commitments immediately prior to their reduction to zero) pay to or indemnify the U.S.
Dollar Swingline Agent, within three Business Days of demand, for or against any cost, loss
or liability (including, without limitation, for negligence or any other category of loss
whatsoever) incurred by that U.S. Dollar Swingline Agent or its Affiliates (other than by
reason of that U.S. Dollar Swingline Agent’s or its Affiliate’s gross negligence or
wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 32.11
(Disruption to payment systems etc.) notwithstanding that U.S. Dollar Swingline Agent’s
or its Affiliate’s negligence, gross negligence or any other category of liability
whatsoever but not including any claim based on the fraud of that U.S. Dollar Swingline Agent
or its Affiliate in acting as a U.S. Dollar Swingline Agent under the Finance Documents (unless
that U.S. Dollar Swingline Agent or its Affiliate has been reimbursed by an Obligor pursuant
to a Finance Document); |
| (iii) | the Revolving Facility C Lender shall
(in proportion to its share of the Total Revolving Facility C Commitments or, if the Total
Revolving Facility C Commitments are then zero, to its share of the Total Revolving Facility
C Commitments immediately prior to their reduction to zero) pay to or indemnify the Facility
C Swingline Agent, within three Business Days of demand, for or against any cost, loss or
liability (including, without limitation, for negligence or any other category of loss whatsoever)
incurred by that Facility C Swingline Agent or its Affiliate (other than by reason of that
Swingline Agent’s (as applicable) or its respective Affiliate’s gross negligence or
wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 32.11
(Disruption to payment systems etc.) notwithstanding that Facility C Swingline Agent’s
or its Affiliate’s negligence, gross negligence or any other category of liability
whatsoever but not including any claim based on the fraud of that Facility C Swingline Agent
or its Affiliate in acting as a Facility C Swingline Agent under the Finance Documents (unless
that Facility C Swingline Agent or its Affiliate has been reimbursed by an Obligor pursuant
to a Finance Document); |
| (iv) | the Revolving Facility D Lender shall
(in proportion to its share of the Total Revolving Facility D Commitments or, if the Total
Revolving Facility D Commitments are then zero, to its share of the Total Revolving Facility
D Commitments immediately prior to their reduction to zero) pay to or indemnify the Swiss
Francs Swingline Agent, within three Business Days of demand, for or against any cost, loss
or liability (including, without limitation, for negligence or any other category of loss
whatsoever) incurred by that Swiss Francs Swingline Agent or its Affiliate (other than by
reason of that Swiss Francs Swingline Agent’s or its Affiliate’s gross negligence or
wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 32.11
(Disruption to payment systems etc.) notwithstanding that Swiss Francs Swingline Agent’s
or its Affiliate’s negligence, gross negligence or any other category of |
| | liability
whatsoever but not including any claim based on the fraud of that Swiss Francs Swingline
Agent or its Affiliate in acting as a Swiss Francs Swingline Agent under the Finance Documents
(unless that Swiss Francs Swingline Agent or its Affiliate has been reimbursed by an Obligor
pursuant to a Finance Document); |
| (v) | each Revolving Facility E Lender shall
(in proportion to its share of the Total Revolving Facility E Commitments or, if the Total
Revolving Facility E Commitments are then zero, to its share of the Total Revolving Facility
E Commitments immediately prior to their reduction to zero) pay to or indemnify the U.S.
Dollar Swingline Agent and the Swiss Francs Swingline Agent (as applicable), within three
Business Days of demand, for or against any cost, loss or liability (including, without limitation,
for negligence or any other category of loss whatsoever) incurred by that U.S. Dollar Swingline
Agent and Swiss Francs Swingline Agent (as applicable) or its Affiliate (other than by reason
of that U.S. Dollar Swingline Agent and Swiss Francs Swingline Agent’s (as applicable)
or its Affiliate’s gross negligence or wilful misconduct) or, in the case of any cost, loss
or liability pursuant to Clause 32.11 (Disruption to payment systems etc.)
notwithstanding that U.S. Dollar Swingline Agent and Swiss Francs Swingline Agent’s
(as applicable) or its Affiliate’s negligence, gross negligence or any other category
of liability whatsoever but not including any claim based on the fraud of that U.S. Dollar
Swingline Agent and Swiss Francs Swingline Agent (as applicable) or its Affiliate in acting
as a U.S. Dollar Swingline Agent and Swiss Francs Swingline Agent (as applicable) under the
Finance Documents (unless that U.S. Dollar Swingline Agent and Swiss Francs Swingline Agent
(as applicable) or its Affiliate has been reimbursed by an Obligor pursuant to a Finance
Document); |
| (vi) | the Revolving Facility F Lender shall
(in proportion to its share of the Total Revolving Facility F Commitments or, if the Total
Revolving Facility F Commitments are then zero, to its share of the Total Revolving Facility
F Commitments immediately prior to their reduction to zero) pay to or indemnify the Swiss
Francs Swingline Agent and the Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent
(as applicable) within three Business Days of demand, for or against any cost, loss or liability
(including, without limitation, for negligence or any other category of loss whatsoever)
incurred by that Swiss Francs Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona
Swingline Agent (as applicable) or its Affiliate (other than by reason of that Swiss Francs
Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent’s (as
applicable) or its Affiliate’s gross negligence or wilful misconduct) or, in the case of
any cost, loss or liability pursuant to Clause 32.11
(Disruption to payment systems etc.) notwithstanding that Swiss Francs Swingline Agent
and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent’s (as applicable) or
its Affiliate’s negligence, gross negligence or any other category of liability whatsoever
but not including any claim based on the fraud of that Swiss Francs Swingline Agent and Danish
Krone/Norwegian Krone/Swedish Krona Swingline Agent (as applicable) or its Affiliate in acting
as the Swiss Francs Swingline Agent and the Danish Krone/Norwegian Krone/Swedish Krona Swingline
Agent (as applicable) under the Finance Documents (unless the Swiss Francs Swingline Agent
and the Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent (as applicable) or its
Affiliate has been reimbursed by an Obligor pursuant to a Finance Document); |
| (vii) | the
Revolving Facility G Lender shall (in proportion to its share of the Total Revolving Facility G Commitments or, if the Total Revolving
Facility G Commitments are then zero, to its share of the Total Revolving Facility G Commitments immediately prior to their reduction
to zero) pay to or indemnify the U.S. Dollar Swingline Agent, the Swiss Francs Swingline Agent and |
| | the Danish Krone/Norwegian Krone/Swedish
Krona Swingline Agent (as applicable), within three Business Days of demand, for or against
any cost, loss or liability (including, without limitation, for negligence or any other category
of loss whatsoever) incurred by that U.S. Dollar Swingline Agent, Swiss Francs Swingline
Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent (as applicable) or its
Affiliate (other than by reason of that U.S. Dollar Swingline Agent, Swiss Francs Swingline
Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent’s (as applicable)
or its respective Affiliate’s gross negligence or wilful misconduct) or, in the case of any
cost, loss or liability pursuant to Clause 32.11
(Disruption to payment systems etc.) notwithstanding that U.S. Dollar Swingline Agent,
Swiss Francs Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent’s
(as applicable) or its Affiliate’s negligence, gross negligence or any other category
of liability whatsoever but not including any claim based on the fraud of that U.S. Dollar
Swingline Agent, Swiss Francs Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona
Swingline Agent (as applicable) or its Affiliate in acting as a U.S. Dollar Swingline Agent,
Swiss Francs Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent
(as applicable) under the Finance Documents (unless that U.S. Dollar Swingline Agent, Swiss
Francs Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent (as
applicable) or its Affiliate has been reimbursed by an Obligor pursuant to a Finance Document); |
| (viii) | the Revolving Facility H Lender
shall (in proportion to its share of the Total Revolving Facility G Commitments or, if the
Total Revolving Facility H Commitments are then zero, to its share of the Total Revolving
Facility H Commitments immediately prior to their reduction to zero) pay to or indemnify
the Swiss Francs Swingline Agent, the Facility C Swingline Agent and the Danish Krone/Norwegian
Krone/Swedish Krona Swingline Agent within three Business Days of demand, for or against
any cost, loss or liability (including, without limitation, for negligence or any other category
of loss whatsoever) incurred by that Swiss Francs Swingline Agent, Facility C Swingline Agent
and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent (as applicable) or its Affiliate
(other than by reason of that Swiss Francs Facility Agent, Facility C Swingline Agent’s and
Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent (as applicable) or its respective
Affiliate’s gross negligence or wilful misconduct) or, in the case of any cost, loss or liability
pursuant to Clause 32.11
(Disruption to payment systems etc.) notwithstanding that Swiss Francs Swingline Agent,
Facility C Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent’s
(as applicable) or its Affiliate’s negligence, gross negligence or any other category
of liability whatsoever but not including any claim based on the fraud of that Swiss Francs
Swingline Agent, Facility C Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona
Swingline Agent (as applicable) or its Affiliate in acting as a Swiss Francs Facility Agent,
Facility C Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent
(as applicable) under the Finance Documents (unless that Swiss Francs Swingline Agent, Facility
C Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent (as applicable)
or its Affiliate has been reimbursed by an Obligor pursuant to a Finance Document); |
| (ix) | the
Revolving Facility I Lender shall (in proportion to its share of the Total Revolving Facility G Commitments or, if the Total Revolving
Facility I Commitments are then zero, to its share of the Total Revolving Facility I Commitments immediately prior to their reduction
to zero) pay to or indemnify the Swiss Francs Swingline Agent and the Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent (as
applicable), within three Business Days of |
| | demand, for or against any cost, loss or liability
(including, without limitation, for negligence or any other category of loss whatsoever)
incurred by that Swiss Francs Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona
Swingline Agent (as applicable) or its Affiliate (other than by reason of that Swiss Francs
Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent’s (as
applicable) or its respective Affiliate’s gross negligence or wilful misconduct) or, in the
case of any cost, loss or liability pursuant to Clause 32.11
(Disruption to payment systems etc.) notwithstanding that Swiss Francs Swingline Agent
and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent (as applicable) or its Affiliate’s
negligence, gross negligence or any other category of liability whatsoever but not including
any claim based on the fraud of that Swiss Francs Swingline Agent and Danish Krone/Norwegian
Krone/Swedish Krona Swingline Agent (as applicable) or its Affiliate in acting as a Swiss
Francs Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent (as
applicable) under the Finance Documents (unless that a Swiss Francs Swingline Agent and Danish
Krone/Norwegian Krone/Swedish Krona Swingline Agent (as applicable) or its Affiliate has
been reimbursed by an Obligor pursuant to a Finance Document); and |
| (x) | each Revolving Facility J Lender shall
(in proportion to its share of the Total Revolving Facility J Commitments or, if the Total
Revolving Facility J Commitments are then zero, to its share of the Total Revolving Facility
J Commitments immediately prior to their reduction to zero) pay to or indemnify the U.S.
Dollar Swingline Agent, the Swiss Francs Swingline Agent and the Danish Krone/Norwegian Krone/Swedish
Krona Swingline Agent (as applicable), within three Business Days of demand, for or against
any cost, loss or liability (including, without limitation, for negligence or any other category
of loss whatsoever) incurred by that U.S. Dollar Swingline Agent, Swiss Francs Swingline
Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent (as applicable) or its
Affiliate (other than by reason of that U.S. Dollar Swingline Agent, Swiss Francs Swingline
Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent’s (as applicable)
or its respective Affiliate’s gross negligence or wilful misconduct) or, in the case of any
cost, loss or liability pursuant to Clause 32.11
(Disruption to payment systems etc.) notwithstanding that U.S. Dollar Swingline Agent,
Swiss Francs Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent’s
(as applicable) or its Affiliate’s negligence, gross negligence or any other category
of liability whatsoever but not including any claim based on the fraud of that U.S. Dollar
Swingline Agent, Swiss Francs Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona
Swingline Agent’s (as applicable) or its Affiliate in acting as a that U.S. Dollar
Swingline Agent, Swiss Francs Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona
Swingline Agent’s (as applicable) under the Finance Documents (unless that U.S. Dollar
Swingline Agent, Swiss Francs Swingline Agent and Danish Krone/Norwegian Krone/Swedish Krona
Swingline Agent’s (as applicable) or its Affiliate has been reimbursed by an Obligor
pursuant to a Finance Document). |
| The Company shall select the
currency of a Loan in a Utilisation Request. |
7.2 | Unavailability of a currency |
| If before the applicable Specified Time, a Lender notifies the Facility Agent, or in the case
of a Swingline Loan, the relevant Swingline Agent that compliance with its obligation to participate in a |
| Loan in the proposed Optional Currency would contravene a law or regulation applicable to it, the Facility
Agent, or in the case of a Swingline Loan, the relevant Swingline Agent will give notice to the Company to that effect by the applicable
Specified Time. In this event, any Lender that gives notice pursuant to this Clause 7.2
will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender’s proportion of the Base Currency
Amount or, in respect of a Rollover Loan, an amount equal to that Lender’s proportion of the Base Currency Amount of the Rollover Loan
that is due to be made) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest
Period. |
7.3 | Participation in a Loan |
Each Lender’s participation
in a Loan will be determined in accordance with paragraph (b) of Clause 5.4
(Lenders’ participation in Revolving Loans) or paragraph (c) of Clause 6.4 (Lenders’ participation in Swingline Loans)
(as applicable).
SECTION 4
REPAYMENT, PREPAYMENT
AND CANCELLATION
8.1 | Repayment of Revolving Loans |
(a) | The Company shall repay each Revolving
Loan on its Repayment Date. |
(b) | Without prejudice to the Company’s obligation
under paragraph (a) above, if in relation to a Revolving Facility one or more Revolving
Loans are to be made available to the Company under that Revolving Facility: |
| (i) | on the same day that a maturing Revolving
Loan under that Revolving Facility is due to be repaid by the Company; |
| (ii) | in the same currency as the maturing
Revolving Loan (unless it arose as a result of the operation of Clause 7.2
(Unavailability of a currency)); and |
| (iii) | in whole or in part, for the purpose
of refinancing the maturing Revolving Loan, the aggregate amount of the new Revolving Loan(s) shall,
unless the Company notifies the Facility Agent to the contrary in the relevant Utilisation
Request, be treated as if applied in or towards repayment of the maturing Revolving Loan
so that: |
| (A) | if the amount of the maturing Revolving
Loan exceeds the aggregate amount of the new Revolving Loan(s): |
| (1) | the Company will only be required to
make a payment under Clause 32.1
(Payments to the Agents) in an amount in the relevant currency equal to that excess;
and |
| (2) | each applicable Lender’s participation
in the new Revolving Loan(s) shall be treated as having been made available and applied
by the Company in or towards repayment of that Lender’s participation in the maturing Revolving
Loan and that Lender will not be required to make a payment under Clause 32.1
(Payments to the Agents) in respect of its participation in the new Revolving Loan(s);
and |
| (B) | if the amount of the maturing Revolving
Loan is equal to or less than the aggregate amount of the new Revolving Loan(s): |
| (1) | the Company will not be required to
make a payment under Clause 32.1
(Payments to the Agents); and |
| (2) | each applicable Lender will be required
to make a payment under Clause 32.1
(Payments to the Agents) in respect of its participation in the new Revolving Loan(s) only
to the extent that its participation in the new Revolving Loan(s) exceeds that Lender’s
participation in the maturing Revolving Loan and the remainder of that Lender’s participation
in the new Revolving Loan(s) shall be treated as having been made available and applied
by the Company in or towards repayment of that Lender’s participation in the maturing Revolving
Loan. |
8.2 | Repayment of Swingline Loans |
| The Company shall repay each
Swingline Loan on its Repayment Date. |
9. | Prepayment
and cancellation |
| If, in any applicable jurisdiction,
it becomes unlawful for any Lender or Related Lender to perform any of its obligations as contemplated by this Agreement or to fund or
maintain its participation in any Loan: |
| (a) | that
Lender or Related Lender shall promptly notify the Facility Agent upon becoming aware of
that event; |
| (b) | upon
the Facility Agent notifying the Company, each Available Commitment of that Lender or Related
Lender together with any Affiliated Lender or Related Lender, will be immediately cancelled
(to the greatest extent possible which does not result in that Lender and/or Related Lender
failing to meet the requirement set out in paragraph (f) of Clause 26.3 (Other conditions
of assignment or transfer)); |
| (c) | to
the extent that the Lender’s and/or Related Lender’s participation has not been transferred
pursuant to paragraph (d) of Clause 9.6
(Right of replacement or repayment and cancellation in relation to a single Lender),
the Company shall repay that Lender’s and/or Related Lender’s participation in the
Loans on the last day of the Interest Period for each Loan occurring after the Facility Agent
has notified the Company or, if earlier, the date specified by the Lender in the notice delivered
to the Facility Agent (being no earlier than the last day of any applicable grace period
permitted by law) and that Lender’s and/or Related Lender’s corresponding Commitment(s) shall
be immediately cancelled in the amount of the participations repaid; and |
| (d) | at
any time if and while the Company is not a wholly owned Subsidiary of the Guarantor, the
Guarantor may, if it gives the Facility Agent not less than three Business Days’ (or such
shorter period as the Majority Lenders may agree) prior notice, cancel the Total Commitments.
On the date specified in the relevant cancellation notice, the Total Commitments will be
cancelled in full and all outstanding Loans, together with accrued interest, and all other
amounts accrued under the Finance Documents will become immediately due and payable. |
9.2 | Change of control and CGM Merger Event |
| (i) | any person or group of persons acting
in concert gains control of the Guarantor; |
| (ii) | the Company ceases to be a wholly
owned Subsidiary of the Guarantor; or |
| (iii) | a CGM Merger Event occurs, |
| (A) | the Company shall promptly notify the
Facility Agent upon becoming aware of that event; |
| (B) | a Lender shall not be obliged to fund
a Utilisation (except for a Rollover Loan); and |
| (C) | if a Lender so requires and notifies
the Facility Agent, the Facility Agent shall, by no less than 60 days’ notice to the Company,
cancel the Commitment of that Lender |
| | and its Related Lender (if any) and declare the participation
of that Lender and of any such Related Lender in all outstanding Loans, together with accrued
interest, and all other amounts accrued under the Finance Documents immediately due and payable,
whereupon the Commitment of that Lender and of any such Related Lender will be cancelled
and all such outstanding amounts will become immediately due and payable. |
(b) | For the purpose of paragraph (a) above,
“control” means the power (whether by way of ownership of shares, proxy,
contract, agency or otherwise) to cast, or control the casting of, more than 50 per cent.
of the maximum number of votes that may be cast at a general meeting of the Guarantor. |
(c) | For the purpose of paragraph (a) above,
“acting in concert” has the meaning given to it in the City Code on Takeovers
and Mergers. |
9.3 | Mandatory prepayment – Collateral
shortfall |
| The Company shall (unless
it elects to transfer additional Eligible Collateral into the Collateral Account(s) pursuant to paragraph 10(a) of Part I
of Schedule 6 (Borrowing Base)) prepay Loan(s) at the times and in the amounts specified in paragraph 9 (Collateral shortfall)
of Part I of Schedule 6 (Borrowing Base). |
9.4 | 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) prior notice, cancel the whole or any part (being a minimum amount of €5,000,000)
of an Available Facility under a Revolving Facility. Any cancellation under this Clause 9.4
shall reduce the Revolving Facility Commitments of the Lenders rateably under that Facility. |
(b) | Upon the whole or part of the Revolving
Facility Commitment of a Revolving Lender being cancelled in accordance with paragraph (a) above,
the applicable Swingline Commitment of that Lender (or, if it does not have a Swingline Commitment,
the Swingline Commitment of its Related Lender under that Facility) will be reduced by the
same amount. |
(c) | The Facility Agent may not make a cancellation
pursuant to paragraph (a) above to the extent that that cancellation would result in
a Lender (or its Related Lender, if any) failing to meet the requirement set out in paragraph
(f) of Clause 26.3 (Other conditions of assignment or transfer). |
9.5 | Voluntary prepayment of Loans |
(a) | The Company may, if it gives the Facility
Agent not less than: |
| (i) | in the case of a Term Rate Revolving
Loan, three Business Days’ (or such shorter period as the Majority Lenders may agree) prior
notice; or |
| (ii) | in the case of an RFR Revolving Loan,
three Business Days’ (or such shorter period as the Majority Lenders and the Facility
Agent may agree) prior notice, provided that, unless such prepayment is made at the end of
an Interest Period and subject to paragraph (c) below, the Company makes no more than
two voluntary prepayments in part of an RFR Revolving Loan in each 12-month period, |
| prepay the whole or any part
of a Revolving Loan (but if in part, being an amount that reduces the Base Currency Amount of the Loan by a minimum amount of €5,000,000). |
(b) | The Company may, if it gives prior notice
to (in the case of a U.S. Dollar Swingline Loan) the U.S. Dollar Swingline Agent or (in the
case of a Euro Swingline Loan or a Sterling Swingline Loan) the €/£ |
| Swingline
Agent or (in the case of a Swiss Francs Swingline Loan) the Swiss Francs Swingline Agent
or (in the case of a Danish Krone Swingline Loan/Norwegian Krone Swingline Loan/Swedish Krona
Swingline Loan (other than a Swedish Krona Swingline Loan in respect of Swingline Facility
C)) the Danish Krone/Norwegian Krone/Swedish Krona Swingline Agent or (in the case of a Swingline
Facility C Nordic Loan) the Facility C Swingline Agent by no later than 12:00 noon on the
date of prepayment, prepay the whole or any part of a Swingline Loan (but if in part, being
an amount that reduces the Base Currency Amount of the Loan by a minimum amount of €5,000,000),
provided that, unless such prepayment is made at the end of an Interest Period and subject
to paragraph (c) below, the Company makes no more than two voluntary prepayments in
part of any Sterling Swingline Loan or Swiss Francs Swingline Loan in each 12-month period. |
(c) | Any partial prepayment of an RFR Revolving
Loan, a Sterling Swingline Loan or a Swiss Francs Swingline Loan made in accordance with
this Clause 9.5 on a day which is not the last day of an Interest Period shall be made together
with a prepayment fee in the amount of U.S.$3,000 by the Company to the relevant Agent. |
9.6 | Right of replacement or repayment
and cancellation in relation to a single Lender |
| (i) | any sum payable to any Lender by an
Obligor is required to be increased under paragraph (c) of Clause 14.2
(Tax gross-up); or |
| (ii) | any Lender claims indemnification
from the Company under Clause 14.3
(Tax indemnity) or Clause 15.1
(Increased costs), |
| the Company may, whilst the
circumstance giving rise to the requirement for that increase or indemnification continues, give the Facility Agent notice of cancellation
of all of the Commitment(s) of that Lender (and its Related Lender, if any) and its intention to procure the repayment of that Lender’s
(and that of its Related Lender, if any) participation in the Loans or give the Facility Agent notice of its intention to replace that
Lender (and its Related Lender, if any) in accordance with paragraph (d) below. |
(b) | On receipt of a notice of cancellation
referred to in paragraph (a) above, the Commitment(s) of that Lender (and its Related
Lender, if any) shall immediately be reduced to zero. |
(c) | On the last day of each Interest Period
which ends after the Company has given notice of cancellation under paragraph (a) above
(or, if earlier, the date specified by the Company in that notice), the Company shall repay
the participation in each Loan of that Lender (and its Related Lender, if any). |
| (i) | any of the circumstances set out in
paragraph (a) above apply to a Lender; or |
| (ii) | an Obligor becomes obliged to pay
any amount in accordance with Clause 9.1
(Illegality) to any Lender, |
| the Company may, on five Business Days’ prior notice to the Facility
Agent and that Lender, replace that Lender (and its Related Lender, if any) by requiring that Lender (and its Related Lender, if any)
to (and, to the extent permitted by law, that Lender (and its Related Lender, if any) shall) transfer, |
| conditional on receipt of the purchase price referred to below, pursuant to Clause 26
(Changes to the Lenders), all (and not part only) of its rights and obligations under this Agreement to an Eligible Institution
which confirms its willingness to assume and does assume all the obligations of the transferring Lender (and its Related Lender, if any)
under each Facility in accordance with Clause 26 (Changes
to the Lenders) 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 (and that of its Related Lender, if any) participation in the outstanding Loans and all accrued interest (to
the extent that the Facility Agent has not given a notification under Clause 26.10
(Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents. |
(e) | The replacement of a Lender pursuant
to paragraph (d) above shall be subject to the following conditions: |
| (i) | the Company shall have no right to
replace an Agent or the Security Agent; |
| (ii) | neither an Agent, Security Agent nor
any Lender shall have any obligation to find a replacement Lender; |
| (iii) | in no event shall a Lender replaced
under paragraph (d) above be required to pay or surrender any of the fees received by
such Lender pursuant to the Finance Documents; |
| (iv) | a Lender (and its Related Lender,
if any) shall only be obliged to transfer its rights and obligations pursuant to paragraph
(d) above once it is satisfied that it has complied with all necessary “know your
customer” or other similar checks under all applicable laws and regulations in relation
to that transfer; and |
| (v) | a Lender shall not be obliged to transfer
its rights and obligations pursuant to paragraph (d) above to the extent that the transfer
would result in that Lender (or its Related Lender, if any) failing to meet the requirements
set out in paragraph (f) of Clause 26.3 (Other conditions of assignment or transfer). |
(f) | A Lender (and its Related Lender, if
any) shall perform the checks described in paragraph (e)(iv) above as soon as reasonably
practicable following delivery of a notice referred to in paragraph (d) above and in
any event within 10 Business Days after the transferring Lender(s) receive all information
and documents reasonably requested by the transferring Lender(s) to perform those checks
and shall notify the Facility Agent and the Company when it is satisfied that it has complied
with those checks. |
| (i) | If any Lender becomes a Defaulting
Lender, the Company may, at any time whilst 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. |
| (ii) | On the notice referred to in paragraph
(i) above becoming effective, each Available Commitment of the Defaulting Lender shall
(other than as set out in paragraph (iv) below) immediately be reduced to zero. |
| (iii) | The Facility Agent shall, as soon
as practicable after receipt of a notice referred to in paragraph (i) above, notify
all the Lenders. |
| (iv) | That Lender’s Available Commitment
relating to each Revolving Facility shall immediately be reduced to the lowest amount possible
which does not result in that Lender (or its Related Lender, if any) failing to meet the
requirement set out in paragraph (f) of Clause 26.3 (Other conditions of assignment
or transfer). |
(a) | Any notice of cancellation or prepayment
given by any Party under this Clause 9
shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify
the date or dates upon which the relevant cancellation or prepayment is to be made and the
amount of that cancellation or prepayment. |
(b) | Any prepayment under this Agreement shall
be made together with accrued interest on the amount prepaid and, subject to any Break Costs
(if any) or any prepayment fees set out in this Agreement, without premium or penalty. |
(c) | Unless a contrary indication appears
in this Agreement, any part of a Facility which is prepaid or repaid may be reborrowed in
accordance with the terms of this Agreement. |
(d) | The Company shall not repay or prepay
all or any part of the Loans or cancel all or any part of the Commitments except at the times
and in the manner expressly provided for in this Agreement. |
(e) | Subject to Clause 2.2
(Increase) and Clause 2.3 (Increase – Accordion Option), no amount of
the Total Commitments cancelled under this Agreement may be subsequently reinstated. |
(f) | If the Facility Agent receives a notice
under this Clause 9
it shall promptly forward a copy of that notice to either the Company or the affected Lender,
as appropriate. |
(g) | If all or part of any Lender’s participation
in a Loan under a Facility is repaid or prepaid and is not available for redrawing (other
than by operation of Clause 4.2
(Further conditions precedent)), an amount of that Lender’s Commitment (equal to the
Base Currency Amount of the amount of the participation which is repaid or prepaid) in respect
of that Facility will be deemed to be cancelled on the date of repayment or prepayment. |
(h) | The Company shall not cancel or reduce
all or any part of a Lender’s Revolving Facility Commitment unless it, at the same time,
rateably cancels the applicable Swingline Commitment (if any) of that Lender or of any Related
Lender of that Lender. |
9.8 | Application of prepayments |
| Any prepayment of a Loan pursuant
to Clause 9.5 (Voluntary prepayment of Loans) shall be applied pro rata to each Lender’s participation in that Loan. |
SECTION 5
COSTS OF UTILISATION
10.1 | Calculation of interest on Term Rate
Revolving Loans |
| The rate of interest on each
Term Rate Revolving Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable: |
| (b) | the
relevant Revolving Loan Term Rate. |
10.2 | Calculation of interest on RFR Revolving
Loans |
(a) | The rate of interest on each RFR Revolving
Loan for any day during an Interest Period is the percentage rate per annum which is the
aggregate of: |
| (ii) | the relevant Revolving Loan RFR Rate
for that day. |
(b) | If any day during an Interest Period
for an RFR Revolving Loan is not an RFR Banking Day, the rate of interest on that RFR Revolving
Loan for that day will be the rate applicable to the immediately preceding RFR Banking Day. |
10.3 | Calculation of interest on Swingline
Loans |
| The rate of interest on each
Swingline Loan for any day during an Interest Period is the percentage rate per annum which is the aggregate of: |
| (b) | the
relevant Swingline Rate for that day or, in relation to a Euro Swingline Loan, Sterling Swingline
Loan and Swiss Francs Swingline Loan, the relevant Swingline Rate for the Swingline Business
Day immediately preceding that day. |
10.4 | Payment of interest on Revolving
Loans |
| The Company shall pay accrued
interest on each Revolving Loan on the last day of each Interest Period for that Loan. |
10.5 | Payment of interest on Swingline
Loans |
| The Company shall pay accrued
interest on each Swingline Loan on the last day of its Interest Period. |
(a) | If an Obligor fails to pay any amount
payable by it under a Finance Document on its due date, interest shall 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 (b) below, is the sum of 2 per cent. p.a. and
the rate which would have been payable if the overdue amount had, during the period of non-payment,
constituted a Revolving Loan in the currency of the overdue amount for successive Interest
Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest
accruing under this Clause 10.6
shall be immediately payable by the Obligor on demand by the Facility Agent. |
(b) | If any overdue amount consists of all
or part of a Loan other than an RFR Revolving Loan and which became due on a day which was
not the last day of an Interest Period relating to that Loan: |
| (i) | the first Interest Period for that
overdue amount shall have a duration equal to the unexpired portion of the current Interest
Period relating to that Loan; and |
| (ii) | the rate of interest applying to the
overdue amount during that first Interest Period shall be the sum of 2 per cent. p.a. and
the rate which would have applied if the overdue amount had not become due. |
(c) | Default interest (if unpaid) 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. |
(a) | The Facility Agent shall promptly notify
the relevant Revolving Lenders and the Company of the determination of a rate of interest
under this Agreement in relation to a Revolving Loan (other than an RFR Revolving Loan),
an Unpaid Sum or any other amount (other than a Swingline Loan). The relevant Agent shall
promptly notify the Company of each Funding Rate relating to a Loan. |
(b) | The €/£ Swingline Agent shall
promptly notify the relevant Swingline Lenders and the Company of the determination of the
rate of interest under this Agreement in relation to a Euro Swingline Loan. |
(c) | The U.S. Dollar Swingline Agent shall
promptly notify the relevant Swingline Lenders and the Company of the determination of the
rate of interest under this Agreement in relation to a U.S. Dollar Swingline Loan. |
(d) | The Swiss Francs Swingline Agent shall
promptly notify the relevant Swingline Lenders and the Company of the determination of the
rate of interest under this Agreement in relation to a Swiss Francs Swingline Loan. |
(e) | The Danish Krone/Norwegian Krone/Swedish
Krona Swingline Agent shall promptly notify the relevant Swingline Lenders and the Company
of the determination of the rate of interest under this Agreement in relation to a Danish
Krone Swingline Loan, Norwegian Krone Swingline Loan, or a Swedish Krona Swingline Loan,
as applicable. |
(f) | The Facility C Swingline Agent shall
promptly notify the Swingline Facility C Lender and the Company of the determination of the
rate of interest under this Agreement in relation to a Swingline Facility C Nordic Loan. |
(g) | The Facility Agent shall promptly upon
an RFR Interest Payment being determinable for an RFR Revolving Loan notify: |
| (i) | the Company of that RFR Interest Payment; |
| (ii) | each relevant Lender of the proportion
of that RFR Interest Payment which relates to that Lender’s participation in the relevant
RFR Revolving Loan; and |
| (iii) | the relevant Lenders and the Company
of: |
| (A) | each
applicable rate of interest relating to the determination of that RFR Interest Payment; and |
| (B) | to
the extent it is then determinable, the Market Disruption Rate (if any) relating to the relevant
RFR Revolving Loan, provided that, for the avoidance of doubt, the Facility Agent shall have
no obligation to notify any Party of a Market Disruption |
| | Rate on or prior to the relevant
Reporting Day and the Facility Agent shall not be responsible or liable for any damages,
costs or losses whatsoever as a result of providing any Market Disruption Rate. |
(h) | The relevant Agent shall promptly notify
the relevant Lenders and the Company of the determination of a rate of interest to which
Clause 12.3 (Cost of funds – Revolving Loans) or Clause 12.5 (Cost of funds
– Swingline Loans), as applicable, applies. |
(i) | This Clause 10.7 shall not require any
Agent to make any notification to any Party on a day which is not a Business Day. |
11.1 | Interest Periods for Revolving Loans |
(a) | The Interest Period for a Revolving Loan
begins on the Utilisation Date of that Loan and ends on the Repayment Date of that Loan or
any other period agreed between the Company and the Facility Agent (acting on the instructions
of all the Lenders). |
(b) | A Revolving Loan has one Interest Period
only. |
(c) | In respect of a RFR Revolving Loan, the
Interest Period shall be one Month. |
11.2 | Interest Periods for Swingline Loans |
(a) | The Interest Period of a Swingline Loan
begins on the Utilisation Date of that Loan and ends on the Repayment Date of that Loan. |
(b) | A Swingline Loan has one Interest Period
only. |
(a) | If an Interest Period would otherwise
end on a day which: |
| (i) | (in the case of a Term Rate Revolving
Loan and other than where paragraph (b) below applies) is not a Business Day, that Interest
Period will instead end on the next Business Day in that calendar month (if there is one)
or the preceding Business Day (if there is not); or |
| (ii) | (in the case of a Swingline Loan but
subject to paragraph (c) below) is not a Swingline Business Day, that Interest Period
will instead end on the next Swingline Business Day in that calendar month (if there is one)
or the preceding Swingline Business Day (if there is not). |
(b) | If a Term Rate Revolving Loan is in a
Nordic Currency and there are rules specified as “Business Day Conventions”
for that currency in Schedule 13 (Term Rate Terms), those rules shall apply to
each Interest Period for that Loan. |
(c) | If a Loan or Unpaid Sum is an RFR Loan
and there are rules specified as “Business Day Conventions” in the applicable
RFR Terms, those rules shall apply to each Interest Period for that Loan or Unpaid Sum. |
(d) | Paragraphs (a) and (c) above
are subject to paragraph (b) of Clause 11.1 (Interest Periods for Revolving Loans)
and paragraph (b) of Clause 11.2 (Interest Periods for Swingline Loans). |
12. | Changes
to the calculation of interest |
12.1 | Interest calculation if no Primary
Term Rate – Revolving Loans |
(a) | Interpolated Primary Term Rate:
If no Primary Term Rate is available for the Interest Period of a Term Rate Revolving Loan,
the applicable Revolving Loan Term Rate shall be the relevant Interpolated Primary Term Rate
for a period equal in length to the Interest Period of that Loan. |
(b) | Shortened Interest Period: If
paragraph (a) above applies but it is not possible to calculate the relevant Interpolated
Primary Term Rate, the Interest Period of the Loan shall (if it is longer than the applicable
Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the
applicable Revolving Loan Term Rate shall be determined pursuant to the definition of “Revolving
Loan Term Rate”. |
(c) | Shortened Interest Period and Historic
Primary Term Rate: If paragraph (b) above applies but no Primary Term Rate is available
for the Interest Period of that Loan and it is not possible to calculate the relevant Interpolated
Primary Term Rate, the applicable Revolving Loan Term Rate shall be the Historic Primary
Term Rate for that Loan. |
(d) | Shortened Interest Period and Interpolated
Historic Primary Term Rate: If paragraph (c) above applies but no Historic Primary
Term Rate is available for the Interest Period of the Loan, the applicable Revolving Loan
Term Rate shall be the Interpolated Historic Primary Term Rate for a period equal in length
to the Interest Period of that Loan. |
(e) | Alternative Term Rate: If paragraph
(d) above applies but it is not possible to calculate the Interpolated Historic Primary
Term Rate, the Interest Period of that Loan shall, if it has been shortened pursuant to paragraph
(b) above, revert to its previous length and the applicable Revolving Loan Term Rate
shall be the aggregate of: |
| (i) | the Alternative Term Rate as of the
Quotation Time for a period equal in length to the Interest Period of that Loan; and |
| (ii) | any applicable Alternative Term Rate
Adjustment. |
(f) | Interpolated Alternative Term Rate:
If paragraph (e) above applies but no Alternative Term Rate is available for the Interest
Period of that Loan, the applicable Revolving Loan Term Rate shall be the aggregate of: |
| (i) | the Interpolated Alternative Term Rate
for a period equal in length to the Interest Period of that Loan; and |
| (ii) | any applicable Alternative Term Rate
Adjustment. |
(g) | Revolving Loan RFR Rate or cost of
funds: If paragraph (f) above applies but it is not possible to calculate the Interpolated
Alternative Term Rate then: |
| (i) | if “Revolving Loan RFR Rate
will apply as a fallback” is specified in Schedule 13 (Term Rate Terms)
for that Loan and there are RFR Terms applicable to that Loan in the relevant currency: |
| (A) | there shall be no Revolving Loan Term
Rate for that Loan for that Interest Period and Clause 10.1 (Calculation of interest on
Term Rate Revolving Loans) will not apply to that Loan for that Interest Period; and |
| (B) | that Loan shall be an “RFR Revolving
Loan” for that Interest Period and Clause 10.2 (Calculation of interest on RFR Revolving
Loans) shall apply to that Loan for that Interest Period; and |
| (A) | "Revolving
Loan RFR Rate will not apply as a fallback" and |
| (B) | "Cost
of funds will apply as a fallback", |
are specified in Schedule 13
(Term Rate Terms) for that Loan, Clause 12.3 (Cost of funds – Revolving Loans) shall apply to that Loan for that
Interest Period.
| 12.2 | Market
disruption – Revolving Loans |
In the case of a Term Rate
Revolving Loan, if before the time specified in respect of that currency in Schedule 13 (Term Rate Terms), the Facility Agent
receives notifications from a relevant Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that its cost
of funds relating to its participation in that Loan would be in excess of the relevant Revolving Loan Term Rate then Clause 12.3
(Cost of funds – Revolving Loans) shall apply to that Loan for the relevant Interest Period.
| 12.3 | Cost
of funds – Revolving Loans |
| (a) | If
this Clause 12.3
applies to a Term Rate Revolving Loan for an Interest Period, Clause 10.1 (Calculation
of interest on Term Rate Revolving Loans) shall not apply to that Loan for that Interest
Period and the rate of interest on that Loan for that Interest Period shall be the percentage
rate per annum which is the sum of: |
| (ii) | the
weighted average of the rates notified to the Facility Agent by each relevant Lender as soon
as practicable and in any event before interest is due to be paid in respect of that Loan,
to be that which expresses as a percentage rate per annum its cost of funds relating to its
participation in that Revolving Loan. |
| (b) | If
this Clause 12.3
applies and the Facility Agent or the Company so requires, the Facility Agent and the Company
shall 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. |
| (c) | Any
alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent
of all relevant Lenders and the Company, be binding on all Parties. |
| (d) | If
this Clause 12.3
applies pursuant to Clause 12.2
(Market disruption – Revolving Loans) and in relation to a Term Rate Revolving
Loan: |
| (i) | a
Lender's Funding Rate is less than, in relation to any Term Rate Revolving Loan in euro,
EURIBOR or, in relation to any Term Rate Revolving Loan in a Nordic Currency, the Benchmark
Rate; or |
| (ii) | a
Lender does not notify a rate to the Facility Agent by the time specified in paragraph (a)(ii) above, |
that Lender’s cost
of funds relating to its participation in that Term Rate Revolving Loan for that Interest Period shall be deemed, for the purposes of
paragraph (a) above, in relation to a Term Rate Revolving Loan in euro, EURIBOR or, in relation to any Term Rate Revolving Loan
in a Nordic Currency, the Benchmark Rate.
| (e) | Subject
to paragraph (d) above, if this Clause 12.3
applies but any Lender does not notify a rate to the Facility Agent by the time specified
in paragraph (a)(ii) above, the rate of interest shall be calculated on the basis of
the rates notified by the remaining Lenders. |
| (f) | If
this Clause 12.3
applies the Facility Agent shall, as soon as is practicable, notify the Company. |
| 12.4 | Interest
calculation if no Swingline Rate – Swingline Loans |
| (a) | If
no Swingline Rate is available for any day, the applicable Swingline Rate for that day shall
be the most recent applicable Swingline Rate which is as of a day which is no more than three
days before that day. |
| (b) | If
paragraph (a) above applies, and there is no applicable Swingline Rate for a Swingline
Loan (other than a Sterling Swingline Loan or Swiss Francs Swingline Loan) which is as of
a day which is no more than three days before that day there shall be no Swingline Rate,
for that day and Clause 12.5 (Cost of funds – Swingline Loans) shall apply. |
| 12.5 | Cost
of funds – Swingline Loans |
| (a) | If
this Clause 12.5 applies to a Swingline Loan (other than a Sterling Swingline Loan or Swiss
Francs Swingline Loan), Clause 10.3 (Calculation of interest on Swingline Loans) shall
not apply to that Loan and the rate of interest on that Loan for the relevant day shall be
the percentage rate per annum which is the sum of: |
| (ii) | the
weighted average of the rates notified to the relevant Swingline Agent by each relevant Swingline
Lender as soon as practicable, and in any event before interest is due to be paid in respect
of that Swingline Loan, to be that which expresses as a percentage rate per annum its cost
of funds relating to its participation in that Loan. |
| (b) | If
this Clause 12.5
applies but any Swingline Lender does not notify a rate by the time specified in paragraph
(a)(ii) above, the rate of interest shall be calculated on the basis of the rates notified
by the remaining Swingline Lenders. |
| (a) | If
an amount is specified as Break Costs in the Reference Rate Terms for a Loan or Unpaid Sum,
the Company shall, within three Business Days of demand by a Finance Party, pay to that Finance
Party its Break Costs (if any) attributable to all or any part of a Loan or Unpaid Sum being
paid by the Company on a day prior to the last day of an Interest Period for that Loan or
Unpaid Sum. |
| (b) | Each
Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide
a certificate confirming the amount of its Break Costs for any Interest Period in respect
of which they become, or may become, payable. |
| (a) | The
Company shall pay to the Facility Agent (for the account of each Revolving Lender in respect
of their relevant Facility) a fee in the Base Currency computed at the rate of 0.275 per
cent. per annum of the Available Commitment under Revolving Facility A, Revolving Facility
B, Revolving Facility C, Revolving Facility D, Revolving Facility E, Revolving Facility F,
Revolving Facility G, Revolving Facility H, Revolving Facility I and Revolving Facility J
for the Availability Period. |
| (b) | 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 the relevant Lender's Commitment at the
time the cancellation is effective. |
| (c) | No
commitment fee is payable to the Facility Agent (for the account of a Revolving Lender) on
any Available Commitment of a Revolving Lender for any day on which that Revolving Lender
is a Defaulting Lender. |
The Company shall pay to
each Arranger an arrangement fee in the amount and at the times agreed in a Fee Letter.
The Company shall pay to
each Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.
The Company shall pay to
the Security Agent (for its own account) a security agency fee in the amount and at the times agreed in a Fee Letter.
SECTION 6
ADDITIONAL PAYMENT
OBLIGATIONS
| 14. | Tax
gross-up and indemnities |
"Bank Levy"
means any amount payable by any Finance Party or any of their respective Affiliates on the basis of or in relation to its balance sheet
or capital base or any part of it or its liabilities or minimum regulatory capital or any combination thereof (including, without limitation,
Dutch bank levy as set out in the Dutch bank tax act (Wet bankenbelasting) and any Tax in any jurisdiction levied on a similar
basis or for a similar purpose.
"Protected Party"
means a Finance Party which is or will be subject to any liability, or 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, in respect of advances to be made under this Agreement to the Company, a Lender which is beneficially entitled to interest payable
to that Lender and is:
| (i) | entitled,
based on the laws of the Source Jurisdiction, to receive a payment of interest under this
Agreement without any Tax Deduction; or |
"Tax Credit"
means a credit against, relief or remission for, or repayment of any Tax.
"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 the increase in a payment made by an Obligor to a Finance Party under Clause 14.2
(Tax gross-up) or a payment under Clause 14.3 (Tax
indemnity).
"Treaty Lender"
means a Lender which:
| (i) | is
treated as a resident of a Treaty State for the purposes of the relevant Treaty; |
| (ii) | does
not carry on a business in the jurisdiction in which the Obligor making a payment is resident
for tax purposes (the "Source Jurisdiction") through a permanent establishment
with which that Lender’s participation in the Loan is effectively connected; and |
| (iii) | fulfils
any condition which must be fulfilled by a Lender under the Treaty for residents of that
Treaty State to obtain full exemption from taxation in the Source Jurisdiction on interest
payable to that Lender in respect of an advance under a Finance Document, subject to the
completion of procedural formalities. |
"Treaty State"
means a jurisdiction having a double taxation agreement (a "Treaty") with the Source Jurisdiction which makes provision
for full exemption from Tax imposed by The Netherlands on interest.
| (b) | Unless
a contrary indication appears in this Clause 14, a reference to "determines" or
"determined" means a determination made in the discretion (reasonably exercised)
of the person making the determination. |
| (a) | Each
Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax
Deduction is required by law. |
| (b) | The
Company shall, promptly upon becoming aware that an Obligor must make a Tax Deduction (or
that there is any change in the rate or the basis of a Tax Deduction), notify the Facility
Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware
in respect of a payment payable to that Lender. If the Facility Agent receives such notification
from a Lender, it shall notify the Company and that Obligor. |
| (c) | If
a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due
from that Obligor shall 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 shall not be increased under paragraph (c) above by reason of a Tax Deduction
on account of Tax imposed by the Source Jurisdiction, 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 Treaty Lender and the Obligor making the payment is able to demonstrate
that the payment could have been made to the Lender without the Tax Deduction had that Lender
complied with its obligations under paragraph (g) (as applicable) below. |
| (e) | If
an Obligor is required to make a Tax Deduction, that Obligor shall 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 shall deliver to the Facility Agent
for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance
Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid
to the relevant taxing authority. |
| (g) | A
Lender and each Obligor which makes a payment to which that Lender is entitled shall co-operate
in completing any procedural formalities necessary for the Company to obtain authorisation
to make that payment without a Tax Deduction. |
| (a) | The
Company shall (within three Business Days of demand by the Facility Agent) pay to a Protected
Party an amount equal to the loss, liability or cost which that Protected Party determines
will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected
Party in respect of a Finance Document. |
| (b) | Paragraph
(a) above shall 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; |
| (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: or |
| (C) | under
the laws of the jurisdiction in which that Finance Party's permanent establishment and/or
permanent representative to which income under this Agreement is effectively attributable
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 loss, liability or cost: |
| (A) | is
compensated for by an increased payment under Clause 14.2
(Tax gross-up); |
| (B) | would
have been compensated for by an increased payment under Clause 14.2 (Tax gross-up),
but was not so compensated solely because an exclusion in Clause 14.2 (Tax gross-up)
applied; |
| (C) | relates
to a FATCA Deduction required to be made by a Party; or |
| (D) | is
suffered or incurred with respect to any Bank Levy (or any payment attributable to, or liability
arising as a consequence of, a Bank Levy). |
| (c) | A
Protected Party making, or intending to make, a claim under paragraph (a) above shall
promptly notify the Facility Agent of the event which will give, or has given, rise to the
claim, following which the Facility Agent shall notify the Company. |
| (d) | A
Protected Party shall, on receiving a payment from an Obligor under this Clause 14.3,
notify the Facility Agent. |
If an Obligor makes a Tax
Payment and the relevant Finance Party determines that:
| (a) | a
Tax Credit is attributable to an increased payment of which that Tax Payment forms part,
to that Tax Payment or to 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 shall 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.
The Company shall pay and,
within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability that Secured Party incurs in relation
to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
| 14.6 | Lender
status confirmation |
| (a) | Each
Lender which is not an Original Lender shall indicate, in the documentation which it executes
on becoming a Party as a Lender, and for the benefit of the Facility Agent and each Swingline
Agent |
| | and without liability to any Obligor, which of the following
categories it falls in, with respect to each Obligor on the day on which such Lender becomes
Party to this Agreement: |
| (i) | not
a Qualifying Lender; |
| (ii) | a
Qualifying Lender (other than a Treaty Lender); or |
| (b) | If
such Lender fails to indicate its status in accordance with this Clause 14.6, then that Lender
shall 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 and each Swingline
Agent which category applies (and the Facility Agent and each Swingline Agent, upon receipt
of such notification, shall inform the Company). For the avoidance of doubt, the documentation
which a Lender executes on becoming a Party as a Lender shall not be invalidated by any failure
of a Lender to comply with this Clause 14.6. Each Lender will notify the Facility Agent and
each Swingline Agent if it ceases, other than as a result in a change of law, to be a Qualifying
Lender (and the Facility Agent and each Swingline Agent, upon receipt of such notification,
shall inform the Company). |
| (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 tax authority for the VAT, that Party must pay to such Finance
Party (in addition to and at the same time as paying any other 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 the 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 shall reimburse or indemnify (as the case may be) such Finance Party
for the full amount of such cost or expense, including such part thereof as represents VAT,
save to the extent that such Finance Party determines that it is entitled to credit or repayment
in respect of such VAT from the relevant tax authority. |
| (d) | Any
reference in this Clause 14.7
to any Party shall, at any time when such Party is treated as a member of a group or unity
(or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise
requires) a reference to the person who is treated at that time as making the supply, or
(as appropriate) receiving the supply, under the grouping rules (provided for in the
Value Added Tax Act 1994, Article 11 of Council Directive 2006/112/EC (or as implemented
by the relevant member state of the European Union) or any other similar provision in any
jurisdiction other than the United Kingdom or a member state of the European Union) so that
a reference to a Party shall be construed as a reference to that Party or the relevant group
or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant
time or the relevant representative member (or head) of that group or unity (or fiscal unity)
at the relevant time (as the case may be). |
| (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. |
| (a) | Subject
to paragraph (c) below, each Party shall, within 10 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; |
| (ii) | supply
to that other Party such forms, documentation and other information relating to its status
under FATCA as that other Party reasonably requests for the purposes of that other Party's
compliance with FATCA; and |
| (iii) | supply
to that other Party such forms, documentation and other information relating to its status
as that other Party reasonably requests for the purposes of that other Party's compliance
with any other law, regulation, or exchange of information regime. |
| (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 shall notify that other Party reasonably promptly. |
| (c) | Paragraph
(a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above
shall not oblige any other Party to do anything, which would or might in its reasonable opinion
constitute a breach of: |
| (i) | any
law or regulation; |
| (ii) | any
fiduciary duty; or |
| (iii) | any
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 requested in accordance with paragraph (a)(i) or (ii) above
(including, for the avoidance of doubt, where paragraph (c) above applies), then such
Party shall be treated for the purposes of the Finance Documents (and payments 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. |
| (e) | If
the Company is a U.S. Tax Obligor, or the Facility Agent reasonably believes that its obligations
under FATCA or any other applicable law or regulation require it, each Lender shall, within
10 Business Days of: |
| (i) | where
the Company is a U.S. Tax Obligor and the relevant Lender is an Original Lender, the date
of the 2023 Amendment and Restatement Agreement; |
| (ii) | where
the Company is a U.S. Tax Obligor on a date on which any other Lender becomes a Party as
a Lender, that date; and |
| (iii) | where
the Company is not a U.S. Tax Obligor, the date of a request from the Facility Agent, |
supply to the Facility Agent:
| (A) | a
withholding certificate on Form W-8, Form W-9 or any other relevant form; or |
| (B) | any
withholding statement or other document, authorisation or waiver as the Facility Agent may
require to certify or establish the status of such Lender under FATCA or that other law or
regulation. |
| (f) | The
Facility Agent shall provide any withholding certificate, withholding statement, document,
authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to
the Company. |
| (g) | If
any withholding certificate, withholding statement, document, authorisation or waiver provided
to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially
inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding
certificate, withholding statement, document, authorisation or waiver to the Facility Agent
unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify
the Facility Agent). The Facility Agent shall provide any such updated withholding certificate,
withholding statement, document, authorisation or waiver to the Company. |
| (h) | The
Facility Agent may rely on any withholding certificate, withholding statement, document,
authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above
without further verification. The Facility Agent shall not be liable for any action taken
by it under or in connection with paragraph (e), (f) or (g) above. |
| (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 shall be required to increase any payment
in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient
of the payment for that FATCA Deduction. |
| (b) | Each
Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there
is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom
it is making the payment and, in addition, shall notify the Company and the Facility Agent
and the Facility Agent shall notify the other Finance Parties. |
| (a) | Subject
to Clause 15.3
(Exceptions), the Company shall, within three Business Days of a demand by the Facility
Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred
by that Finance Party or any of its Affiliates as a result of (i) the introduction of
or any change in (or in the interpretation, administration or application of) any law or
regulation or (ii) compliance with any law or regulation made after 1 July 2020
or (iii) the implementation or |
| | application of or compliance with Basel III, CRD IV or CRD
V or any law or regulation that implements or applies Basel III, CRD IV or CRD V or (iv) the
implementation or application of or compliance with the Dodd-Frank Wall Street Reform and
Consumer Protection Act (the "Dodd-Frank Act") and any requests, rules,
guidelines or directives made under, or issued in connection with, the Dodd-Frank Act. |
"Basel III"
means:
| (i) | 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 on Banking Supervision in December 2010, each as amended,
supplemented or restated; |
| (ii) | 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 on Banking Supervision in November 2011,
as amended, supplemented or restated; and |
| (iii) | any
further guidance or standards published by the Basel Committee on Banking Supervision relating
to "Basel III". |
"Basel III/CRD IV/CRD
V Costs" means any Increased Cost which is attributable to the implementation or application of, or compliance with, Basel III,
CRD IV or CRD V or any law or regulation that implements or applies Basel III, CRD IV or CRD V, including any of the changes designed
to strengthen any capital standards or introduce minimum liquidity or other requirements referenced in Basel III, CRD IV or CRD V (whether
such implementation, application or compliance is by a government, regulator, a Finance Party or one of its Affiliates).
"CRD IV"
means EU CRD IV and UK CRD IV.
“CRD V”
means EU CRD V and UK CRD V.
"EU CRD IV"
means:
| (i) | 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 amending Regulation (EU) No
648/2012 ("CRR"); and |
| (ii) | 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, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and
2006/49/EC ("CRD4"). |
“EU CRD V”
means:
| (i) | Regulation
(EU) No 2019/876 of the European Parliament and of the Council of 20 May 2019 amending
CRR and Regulation (EU) No 648/2012 ("CRR2"); and |
| (ii) | Directive
(EU) 2019/878 of the European Parliament and of the Council of 20 May 2019 amending
CRD4 (“CRD5”). |
"Increased Costs"
means:
| (i) | a
reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's)
overall capital; |
| (ii) | an
additional or increased cost; or |
| (iii) | 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 its Commitment
or funding or performing its obligations under any Finance Document.
"UK CRD IV"
means:
| (i) | CRR
as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal)
Act 2018 (the "Withdrawal Act"); |
| (ii) | the
law of the United Kingdom or any part of it, which immediately before IP completion day (as
defined in the European Union (Withdrawal Agreement) Act 2020 ("WAA")) implemented
CRD4 and its implementing measures; and |
| (iii) | direct
EU legislation (as defined in the Withdrawal Act), which immediately before IP completion
day (as defined in the WAA) implemented EU CRD IV as it forms part of domestic law of the
United Kingdom by virtue of the Withdrawal Act. |
“UK CRD V”
means:
| (i) | CRR2
as it forms part of domestic law of the United Kingdom by virtue of the Withdrawal Act; |
| (ii) | the
law of the United Kingdom or any part of it, which immediately before IP completion day (as
defined in the WAA) implemented CRD5 and its implementing measures; and |
| (iii) | direct
EU legislation (as defined in the Withdrawal Act), which immediately before IP completion
day (as defined in the WAA) implemented EU CRD V as it forms part of domestic law of the
United Kingdom by virtue of the Withdrawal Act. |
| 15.2 | Increased
cost claims |
| (a) | A
Finance Party intending to make a claim pursuant to Clause 15.1
(Increased costs) shall notify the Facility Agent of the event giving rise to the
claim, following which the Facility Agent shall promptly notify the Company. |
| (b) | Each
Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide
a certificate confirming the amount of its Increased Costs. |
| (a) | Clause
15.1 (Increased
costs) does not apply to the extent any Increased Cost is: |
| (i) | attributable
to a Tax Deduction required by law to be made by an Obligor; |
| (ii) | attributable
to a FATCA Deduction required to be made by a Party; |
| (iii) | compensated
for by Clause 14.3
(Tax indemnity) (or would have been compensated for under Clause 14.3
(Tax indemnity) but was not so compensated solely because any of the exclusions in
paragraph (b) of Clause 14.3
(Tax indemnity) applied); |
| (iv) | attributable
to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;
or |
| (v) | attributable
to the implementation or application of or compliance with the "International Convergence
of Capital Measurement and Capital Standards, a Revised Framework" published by the
Basel Committee on Banking Supervision in June 2004 in the form existing on 1 July 2020
(but excluding any amendment arising out of Basel III) ("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). |
| (b) | This
Clause 15 shall only apply to a Basel III/CRD IV/CRD V Cost: |
| (i) | to
the extent that such Basel III/CRD IV/CRD V Cost was not capable of being calculated by that
Finance Party with sufficient accuracy prior to 1 July 2020 due to a lack of clarity
or detail in Basel III, CRD IV or CRD V or any law or regulation that implements or applies
Basel III, CRD IV or CRD V and/or any related information from a banking regulator available
on 1 July 2020; and |
| (ii) | provided
that the relevant Finance Party confirms in writing to the Company that it seeks to recover
the equivalent of Basel III/CRD IV/CRD V Costs to a similar extent from other similar borrowers
and that it is actually implementing that policy in respect of similar facilities for similar
borrowers, provided that similarity in this respect is determined by that Finance Party on
the basis of all aspects of the relationship between that Finance Party and its clients. |
| (c) | For
the purposes of paragraph (b)(ii) above, a written and duly signed statement by a Finance
Party giving the required confirmations will be sufficient evidence, and a Finance Party
will not be required to: |
| (i) | provide
any further evidence or otherwise to substantiate its policy concerning Basel III/CRD IV/CRD
V Costs; or |
| (ii) | disclose
any further information which that Finance Party is required to keep confidential under applicable
laws or central banking regulations. |
| (d) | In
this Clause 15.3,
a reference to a "Tax Deduction" has the same meaning given to that term in Clause
14.1 (Definitions). |
| (a) | If
any sum due from an Obligor under the Finance Documents (a "Sum"), or any
order, judgment or award given or made in relation to a Sum, has to be converted from the
currency (the "First Currency") in which that Sum is payable into another
currency (the "Second Currency") for the purpose of: |
| (i) | making
or filing a claim or proof against that Obligor; or |
| (ii) | obtaining
or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings, |
that Obligor shall as an
independent obligation, within three Business Days of demand, indemnify each Secured Party to whom that Sum is due against any cost,
loss or liability arising out of or as a result of the conversion, including any discrepancy between (A) the rate of exchange used
to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person
at the time of its receipt of that Sum.
| (b) | Each
Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance
Documents in a currency or currency unit other than that in which it is expressed to be payable. |
| (a) | The
Company shall (or shall procure that an Obligor will), within three Business Days of demand,
indemnify each Secured Party against any cost, loss or liability incurred by that Secured
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 arising as a result of Clause 31
(Sharing among the Finance Parties); |
| (iii) | funding,
or making arrangements to fund, its participation in a Loan requested by the Company 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 Secured Party alone);
or |
| (iv) | a
Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given
by the Company. |
| (b) | The
Company shall, within three Business Days of demand, indemnify each Secured Party against
any cost, expense, loss or liability (including, without limitation, reasonable legal fees)
incurred by that Secured Party (acting reasonably), in each case, arising out of or in connection
with any action, claim, investigation or proceeding commenced or threatened (including, without
limitation, any action, claim, investigation or proceeding to preserve or enforce rights)
in relation to: |
| (i) | the
use of the proceeds of a Facility; and/or |
| (ii) | any
Finance Document. |
| (c) | The
Company will not be liable under paragraph (b) above for any cost, expense, loss or
liability (including, without limitation, legal fees) incurred by a Secured Party (other
than in respect of the Security Agent in respect of whom Clause 16.4 (Indemnity to the
Security Agent) shall apply) if and to the extent that cost, expense, loss or liability
results from any breach by that Secured Party of any Finance Document which has resulted
directly from that Secured Party's own gross negligence, fraud or wilful misconduct. |
| (d) | Each
Obligor agrees that no Secured Party shall have any liability (whether direct or indirect,
in contract or tort or otherwise) to an Obligor or any of their Affiliates for or in connection
with anything referred to in paragraph (b) or (c) above except for any such cost,
expense, loss or liability incurred by an Obligor that results from any breach by that Secured
Party of any Finance Document which has resulted directly from that Secured Party's own gross
negligence, fraud or wilful misconduct, provided that each Obligor agrees that the Security
Agent shall have no such liability to any Obligor. |
| (e) | Notwithstanding
anything in paragraphs (a) to (d) above, no Secured Party shall be responsible
or have any liability to an Obligor or any of its Affiliates or anyone else for consequential
losses or damages or indirect, special or punitive damages. |
| 16.3 | Indemnity
to each Agent |
The Company shall promptly
indemnify each Agent against:
| (a) | any
cost, loss or liability incurred by that Agent (acting reasonably) as a result of: |
| (i) | investigating
any event which it reasonably believes is a Default; |
| (ii) | acting
or relying on any notice, request or instruction which it reasonably believes to be genuine,
correct and appropriately authorised; or |
| (iii) | instructing
lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as
permitted under this Agreement; and |
| (b) | any
cost, loss or liability (including, without limitation, for negligence or any other category
of liability whatsoever) incurred by that Agent (otherwise than by reason of that Agent's
gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant
to Clause 32.11
(Disruption to payment systems etc.), notwithstanding that Agent's negligence, gross
negligence or any other category of liability whatsoever but not including any claim based
on the fraud of that Agent) in acting as an Agent under the Finance Documents. |
| 16.4 | Indemnity
to the Security Agent |
| (a) | The
Company shall promptly indemnify the Security Agent and every Receiver and Delegate against
any cost, loss or liability incurred by any of them as a result of: |
| (i) | any
failure by the Company to comply with its obligations under Clause 18
(Costs and expenses); |
| (ii) | acting
or relying on any notice, request or instruction which it reasonably believes to be genuine,
correct and appropriately authorised; |
| (iii) | the
taking, holding, protection or enforcement of the Transaction Security; |
| (iv) | the
exercise of any of the rights, powers, discretions, authorities and remedies vested in the
Security Agent and each Receiver and Delegate by the Finance Documents or by law; |
| (v) | any
default by any Obligor in the performance of any of the obligations expressed to be assumed
by it in the Finance Documents; |
| (vi) | instructing
lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as
permitted under this Agreement; or |
| (vii) | acting
as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates
to any of the Security Property (otherwise, in each case, than by reason of the relevant
Security Agent's, Receiver’s or Delegate’s gross negligence or wilful misconduct). |
| (b) | The
Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured
Parties, indemnify itself out of the Security Assets in respect of, and pay and retain, all
sums necessary to give effect to the indemnity in this Clause 16.4
and shall have a lien on the Transaction Security and the proceeds of the enforcement of
the Transaction Security for all moneys payable to it. |
| (c) | This
Clause 16 and Clause 28.13 (Lenders’ indemnity to the Security Agent) shall
survive the termination or discharge of this Agreement or the resignation or removal of any
Agent or the Security Agent. |
| 17. | Mitigation
by the Lenders |
| (a) | Each
Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate
any circumstances which arise and which would result in any amount becoming payable under
or pursuant to, or cancelled pursuant to, any of Clause 9.1
(Illegality), Clause 14
(Tax gross-up and indemnities) or Clause 15
(Increased costs), including (but not limited to) 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. |
| 17.2 | Limitation
of liability |
| (a) | The
Company shall promptly indemnify each Finance Party for all costs and expenses reasonably
incurred by that Finance Party as a result of steps taken by it under Clause 17.1
(Mitigation). |
| (b) | A
Finance Party is not obliged to take any steps under Clause 17.1
(Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so
might be prejudicial to it. |
The Company shall within
five Business Days of written demand, pay the Facility Agent, the Security Agent, each Swingline Agent and Arranger the amount of all
costs and expenses (including legal fees) reasonably incurred by any of them (and, in the case of the Security Agent, by any Receiver
or Delegate) in connection with the negotiation, preparation, printing, execution and syndication of:
| (a) | this
Agreement and any other documents referred to in this Agreement; and |
| (b) | any
other Finance Documents executed after 1 July 2020. |
If:
| (a) | an
Obligor requests an amendment, waiver or consent; or |
| (b) | an
amendment is required pursuant to Clause 32.10
(Change of currency), |
the Company shall, within
five Business Days of written demand (accompanied by a breakdown showing in reasonable detail the relevant costs and expenses), reimburse
the Facility Agent, the Swingline Agents and the Security Agent for the amount of all costs and expenses (including legal fees) reasonably
incurred and properly documented by the relevant Agent or the Security Agent (and, in the case of the Security Agent, by any Receiver
or Delegate) in responding to, evaluating, negotiating or complying with that request or requirement.
| 18.3 | Enforcement
and preservation costs |
The Company shall, within
five Business Days of written demand, pay to each Secured Party the amount of all costs and expenses (including legal fees) properly
incurred by that Secured Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document or
the Transaction Security and with any proceedings instituted by or against that Secured Party as a consequence of it entering into a
Finance Document or taking or holding the Transaction Security, or enforcing those rights.
| 18.4 | Security
Agent expenses |
The Company shall, within
five Business Days of demand (accompanied by a breakdown showing in reasonable detail the relevant costs and expenses), pay the Security
Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it and properly documented in connection with
the administration or release of any Security created pursuant to any Security Document.
| 18.5 | Security
Agent’s management time |
| (a) | Any
amount payable to the Security Agent under Clause 28.13 (Lenders' indemnity to the Security
Agent), Clause 13.4 (Security Agency fee) or Clause 16.4 (Indemnity to the
Security Agent) shall include the cost of utilising the Security Agent's management time
or other resources and will be calculated on the basis of such reasonable daily or hourly
rates as the Security Agent may notify to the Borrower and the Lenders, and is in addition
to any other fee paid or payable to the Security Agent. |
| (b) | Without
prejudice to paragraph (a) above, in the event of: |
| (i) | an
Event of Default; or |
| (ii) | the
Security Agent being requested by the Borrower or the Facility Agent to undertake duties
which the Security Agent and the Borrower agree to be of an exceptional nature or outside
the scope of the duties of the Security Agent under the Finance Documents; or |
| (iii) | the
Security Agent and the Borrower agreeing that it is otherwise appropriate in the circumstances, |
the Borrower shall pay to
the Security Agent any additional remuneration (together with any applicable VAT) that may be agreed between them or determined pursuant
to paragraph (c) below, it being understood that any such additional remuneration shall be calculated by reference to the reasonable
daily or hourly rates of the Security Agent’s management personnel and the time expended by (or reasonably expected to be expended
by) such management personnel on the applicable matters; provided that, in relation to paragraphs (ii) and (iii) above only,
the provisions of paragraph (c) below shall apply only if (X) the Security Agent has used reasonable efforts to consult with
and reach agreement with the Borrower as provided in paragraph (ii) or (iii) above, as applicable, and no such agreement has
been reached and (Y) the duties which are the subject of such agreement are required to be undertaken by the Security Agent in the
interests of the Secured Parties.
| (c) | Subject
to the proviso set forth in paragraph (b) above, if the Security Agent and the Borrower
fail to agree upon the nature of the duties or upon the additional remuneration referred
to in paragraph (b) above or whether additional remuneration is appropriate in the circumstances,
any dispute shall be determined by an investment bank (acting as an expert and not as an
arbitrator) selected by the Security Agent and approved by the Borrower or, failing approval,
nominated (on the application of the Security Agent) by the President for the time being
of the Law Society of England and Wales (the costs of the nomination and of the investment
bank being shared equally between the Borrower and the Security Agent) and the determination
of any investment bank shall be final and binding upon the Parties, so long as each of the
Borrower and the Security Agent have had a reasonable opportunity to present their views
on the dispute to the investment bank within a reasonable period of time prior to the issuance
of its determination. |
SECTION 7
GUARANTEE
| 19. | Guarantee
and indemnity |
| 19.1 | Guarantee
and indemnity |
The Guarantor irrevocably
and unconditionally:
| (a) | guarantees,
as primary obligor and not merely as surety, to each Finance Party punctual performance by
the Company of its obligations to pay scheduled interest and fees under the Finance Documents; |
| (b) | undertakes
with each Finance Party that whenever the Company does not pay any amount of scheduled interest
and fees when due under or in connection with any Finance Document, the Guarantor shall immediately
on demand pay that amount as if it was the principal obligor; and |
| (c) | agrees
with each Finance Party that if any obligation guaranteed by it 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 it incurs as a result of
the Company not paying any amount which would, but for such unenforceability, invalidity
or illegality, have been payable by it under any Finance Document on the date when it would
have been due. The amount payable by the Guarantor under this indemnity will not exceed the
amount it would have had to pay under this Clause 19
if the amount claimed had been recoverable on the basis of a 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 or any increase of the Commitments, and this guarantee constitutes a guarantee of payment and
not of collection.
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 the Guarantor under this Clause 19
will continue or be reinstated as if the discharge, release or arrangement had not occurred.
The obligations of the Guarantor
under this Clause 19 will not be affected by an act, omission,
matter or thing which, but for this Clause 19.4, would reduce, release or prejudice any of its obligations under this Clause 19
(without limitation and whether or not known to it or any Finance Party), including:
| (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 or any non-presentation or non-observance of any formality or other requirement
in respect of any instrument or any failure to realise the full value of any security; |
| (d) | 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; |
| (e) | any
amendment, novation, supplement, extension, restatement (however fundamental and whether
or not more onerous) or replacement 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 facility or the addition of any new facility under any Finance Document or other document
or security; |
| (f) | any
unenforceability, illegality or invalidity of any obligation of any person under any Finance
Document or any other document or security; or |
| (g) | any
insolvency or similar proceedings. |
The Guarantor waives any
right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other
rights or security or claim payment from any person before claiming from the Guarantor under this Clause 19.
This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
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 the same in such manner and order as it sees fit (whether against those amounts
or otherwise) and the Guarantor shall not be entitled to the benefit of the same; and |
| (b) | hold
in an interest-bearing suspense account any moneys received from the Guarantor or on account
of the Guarantor's liability under this Clause 19. |
| 19.7 | Deferral
of Guarantor's rights |
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 and unless
the Facility Agent (or, as the case may be, the Security Agent) otherwise directs, the Guarantor will not 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 19:
| (a) | to
be indemnified by the Company; |
| (b) | to
claim any contribution from any other guarantor of any of the Company's obligations under
the Finance Documents; |
| (c) | 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; |
| | |
| (d) | to
bring legal or other proceedings for an order requiring the Company to make any payment,
or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking
or indemnity under Clause 19.1
(Guarantee and indemnity); |
| (e) | to
exercise any right of set-off against the Company; and/or |
| (f) | to
claim or prove as a creditor of the Company in competition with any Finance Party. |
If the Guarantor receives
any benefit, payment or distribution in relation to such rights, it shall 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 shall promptly pay or transfer the same to the Facility Agent or as the Facility
Agent may direct for application in accordance with Clause 32
(Payment mechanics).
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.
| (a) | Notwithstanding
anything in the Finance Documents (other than paragraph (c) below), each Finance Party
acknowledges and agrees that recourse against the Guarantor under the Finance Documents is
limited to an amount equal to scheduled interest and fees under the Finance Documents (the
"Recourse Amount"). |
| (b) | No
Finance Party shall have any claim or recourse against the Guarantor in respect of any of
the Guarantor’s obligations under any Finance Document which is or remains unsatisfied
after the irrevocable payment in full by the Guarantor of the Recourse Amount. |
| (c) | Notwithstanding
paragraphs (a) and (b) above, 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, Clause 19.7 (Deferral of Guarantor’s rights) shall continue to apply
to the Guarantor. |
SECTION 8
REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT
| 20. | Representations
of the Company |
The Company makes the representations
and warranties set out in this Clause 20 to each Finance Party
on 1 July 2020.
| (a) | It
is a corporation, duly incorporated and validly existing under the law of its jurisdiction
of incorporation. |
| (b) | It
is recognised and supervised as a Qualifying Central Counterparty by the DNB and the AFM
under EMIR and the Dutch Financial Supervision Act. |
| (c) | It,
and each other member of the Group, has the power to own its assets and carry on its business
as it is being conducted, except to the extent that failure to have such power could not
reasonably be expected to have a Material Adverse Effect. |
Subject to the Legal Reservations,
the obligations expressed to be assumed by it in each Finance Document to which it is a party are legal, valid, binding and enforceable.
| 20.3 | Non-conflict
with other obligations |
The entry into and performance
by it of, and the transactions contemplated by, the Finance Documents and the granting of the Transaction Security do not and will not
conflict with:
| (a) | any
law or regulation applicable to it; |
| (b) | any
Regulatory Authorisation; |
| (c) | its,
or any of its Subsidiaries', constitutional documents; |
| (d) | the
Rules, any Clearing Participant Agreement or any Link Agreement; or |
| (e) | any
agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of
its Subsidiaries' assets except to the extent that such conflict would not reasonably be
expected to have a Material Adverse Effect, |
nor (except as provided in
any Security Document) result in the existence of, or oblige it to create, any Security over any of its assets.
It has the power to enter
into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents
to which it is a party and the transactions contemplated by those Finance Documents.
| 20.5 | Validity
and admissibility in evidence |
Subject to the Legal Reservations
and, in the case of the Security Documents, the Perfection Requirements, all Authorisations required:
| (a) | to
enable it lawfully to enter into, exercise its rights and comply with its obligations under
the Finance Documents to which it is a party; |
| (b) | to
make the Finance Documents to which it is a party admissible in evidence in its Relevant
Jurisdiction (excluding for the purpose of this provision, paragraph (c) of the definition
of "Relevant Jurisdiction"); and |
| (c) | to
enable it to create the Security to be created by it pursuant to any Security Document and
to ensure that such Security has the priority and ranking it is expressed to have, |
have been obtained or effected
and are in full force and effect.
| 20.6 | Governing
law and enforcement |
| (a) | The
choice of governing law of the Finance Documents will be recognised and enforced in its Relevant
Jurisdiction (excluding for the purpose of this provision, paragraph (c) of the definition
of "Relevant Jurisdiction") subject to the Legal Reservations. |
| (b) | Any
judgment obtained in relation to a Finance Document in the jurisdiction of the governing
law of that Finance Document will be recognised and enforced in its Relevant Jurisdiction
(excluding for the purpose of this provision, paragraph (c) of the definition of "Relevant
Jurisdiction") subject to the Legal Reservations. |
It is not required under
the laws of its jurisdiction of incorporation or any jurisdiction through which it makes any payment under or in connection with this
Agreement to make any Tax Deduction (as defined in Clause 14.1 (Definitions)) from any payment it may make to a Qualifying Lender
under any Finance Document.
| 20.8 | No
filing or stamp taxes |
| (a) | Under
the law of its Relevant Jurisdiction (excluding for the purpose of this provision, paragraph
(c) of the definition of "Relevant Jurisdiction"), it is not necessary that
the Finance Documents be filed, recorded or enrolled with any court or other authority in
that jurisdiction or that any stamp, registration or similar tax be paid on or in relation
to the Finance Documents or the transactions contemplated by the Finance Documents which
has not been paid except to the extent referred to in paragraph (b) below. |
| (b) | To
the extent that registration of the particulars of: |
| (i) | the
Irish law governed Original Security Agreement or Supplemental Security Agreement is required
at the Companies Registration Office in Ireland in accordance with the Irish Companies Act
2014 (as amended); and |
| (ii) | the
English law governed Original Security Agreement or Supplemental Security Agreement is required
at Companies House in England and Wales, |
any registrations, filings,
taxes and fees associated with such registration will be made and paid promptly after the date of the relevant Finance Document and in
any event prior to the time required to be made and paid if the Finance Document is to remain valid or if interest or penalties are to
be avoided with respect to the registration, filing, taxes or fees.
| (a) | No
Default is continuing or might reasonably be expected to result from the making of any Utilisation. |
| (b) | No
other event or circumstance is outstanding which constitutes a default under any other agreement
or instrument which is binding on it or any of its Subsidiaries or to which its (or any of
its |
| Subsidiaries') assets are subject which has or could reasonably be expected to have a Material Adverse
Effect. |
| |
20.10 | No
misleading information |
| (a) | Any
factual information provided by any member of the Group for the purposes of the Information
Memorandum was true and accurate in all material respects as at the date it was provided
or as at the date (if any) at which it is stated. |
| (b) | Any
factual information in writing and any other material factual information provided on or
before 1 July 2020 by or on behalf of any member of the Group in connection with the
Facilities, including for the purposes of the Information Memorandum (the "Information")
was, taken as a whole, true and accurate in all material respects as at the date it was provided
or as at the date (if any) at which it is stated. |
| (c) | The
financial projections contained in the Information Memorandum have been prepared on the basis
of recent historical information and on the basis of reasonable assumptions. |
| (d) | 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
or the Information (taken as a whole) being untrue or misleading in any material respect
on 1 July 2020. |
| (e) | All
information provided by or on behalf of any member of the Group to any Secured Party under
or in connection with the Finance Documents or the Facilities after 1 July 2020 was
true, complete and accurate in all material respects as at the date it was provided or as
at the date (if any) at which it was stated and is not misleading in any material respect. |
| 20.11 | Financial
statements |
| (a) | Its
Original Financial Statements were prepared in accordance with GAAP consistently applied. |
| (b) | Its
Original Financial Statements fairly present its consolidated financial condition as at the
end of the relevant financial year and its results of operations as at the end of and for
the relevant financial year. |
| (c) | There
has been no material adverse change in the business, financial condition, operations, performance
or assets of the Company and its Subsidiaries (taken as a whole) since 31 December 2022,
provided that, when determining whether any event or circumstance has or can reasonably be
foreseen as being likely to have a material adverse effect or result in a material adverse
change for the purposes of this paragraph (c), no regard shall be given to: |
| (i) | any
event or circumstances disclosed in the Company's Original Financial Statements or the Information
Memorandum; or |
| (ii) | the
business, financial condition, operations, performance or assets of: |
| (A) | any
Clearing Participant; |
| (B) | any
Co-operating Clearing House; |
| (C) | any
issuer of any securities processed through the Clearing System of the Company; or |
| (D) | the
Custodians or the Collateral Monitor, |
(except, in each case, to the
extent such event or circumstances directly affect the Company's ability to carry on its operations as a central counterparty in accordance
with the Rules).
Without limiting Clause 20.13
(Collateral), its payment obligations under the Finance Documents to which it is a party 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.
| (a) | All
cash and other securities taken into account for the purpose of calculating the Collateral
Value at any time were at the time of calculation Eligible Collateral subject to the Security
created pursuant to the Security Documents, in each case, in accordance with the Finance
Documents. |
| (b) | Subject
to the Perfection Requirements, each Security Document creates (or, once entered into, will
create) in favour of the Security Agent for the benefit of the Secured Parties the Transaction
Security which it is expressed to create with the ranking and priority it is expressed to
have. |
| (i) | has
good and marketable title to and is the full beneficial owner of all Eligible Collateral
which is included (or intended to be included but for a defect in the Transaction Security)
in the Collateral, or has full right and authority to create Security over that Eligible
Collateral in favour of the Security Agent under and in accordance with each Security Document,
free of all right, title and interest of any Clearing Participant, any Co-operating Clearing
House or any other person; and |
| (ii) | has
not sold, transferred, lent, assigned, parted with its interest in or disposed of, granted
any option in respect of or otherwise dealt with any of its rights, title and interest in
and to the Security Assets, or agreed to do any of the foregoing (other than in accordance
with or pursuant to the Finance Documents). |
| (d) | The
Eligible Collateral which is included (or intended to be included but for a defect in the
Transaction Security) in the Collateral: |
| (i) | is
subject to the Security created or intended to be created under the Security Documents; |
| (ii) | is
free from all Security except any Security permitted by, and in accordance with, paragraph
(d) of Clause 23.3 (Negative pledge); |
| (iii) | is
free from any right of redemption or adverse claims which might be asserted by the Company,
any other member of the Group, the Guarantor, any Clearing Participant, any Co-operating
Clearing House or any other person (other than the Company's rights upon cancellation of,
and repayment and discharge in full of all amounts owing under, the Finance Documents); and |
| (iv) | is
either cash or freely transferable on an exchange or market in which securities supported
by the Company are traded. |
| (e) | The
inclusion of any Eligible Collateral which is included (or intended to be included but for
a defect in the Transaction Security) in the Collateral does not and will not infringe the
Rules, any Clearing Participant Agreement, any Link Agreement, any law, regulation or Regulatory
Authorisation, its |
| | constitutional documents or any other agreement binding upon it or any of its assets or result in the
existence of or oblige it to create any security over any of its assets. |
| | |
| (f) | The
Company is and will at all times be the sole, absolute, legal and beneficial owner of its
rights against the Custodians under the Custody Agreement which remains in full force and
effect without amendment, supplement or variation. With respect to the Custody Agreement,
there has not been: |
| (i) | a
breach or default which has occurred or is continuing and which is material to this Agreement; |
| (ii) | a
right for any party other than the Company to rescind, cancel or terminate as a result of
a breach or default; or |
| (iii) | a
claim made by the Company or any other party under or in connection with the Custody Agreement. |
| (a) | No
litigation, arbitration or administrative proceedings of or before any court, arbitral body
or agency or any regulatory enforcement actions, investigations or disciplinary actions which
are reasonably likely to be adversely determined and, if adversely determined, would or could
reasonably be expected to have a Material Adverse Effect have (to the best of its knowledge
and belief) been started or threatened against it or any of its Subsidiaries, or (in respect
of any anti-bribery, anti-corruption or anti-money laundering laws or regulations) any of
their respective directors, officers, agents or employees. |
| (b) | No
judgment or order of a court, arbitral body or agency which would or could reasonably be
expected to have a Material Adverse Effect has (to the best of its knowledge and belief)
been made against it or any of its Subsidiaries. |
| (c) | No
material disputes or grievances with any Clearing Participant in its capacity as a Clearing
Participant have been started or (to the best of its knowledge and belief) threatened against
it or any other member of the Group, which will or would or could reasonably be expected
to have a Material Adverse Effect. |
| 20.15 | Authorisations
and law |
| (a) | All
Regulatory Authorisations have been obtained and are in full force and effect. |
| (b) | It
and each other member of the Group is in compliance, in all material respects, with: |
| (i) | all
applicable laws, regulations and Regulatory Authorisations to which it is subject; and |
| (ii) | the
Rules and the Clearing Participant Agreements. |
| 20.16 | Clearing
Participant Agreements |
| (a) | Each
of the Clearing Participants is party to a signed Clearing Participant Agreement substantially
in the agreed form. |
| (b) | The
obligations expressed to be assumed by the Company and the relevant Clearing Participant
under the Clearing Participant Agreement between them are (to the best of the Company's knowledge,
after making all due and careful enquiries) legal, valid, binding and enforceable. |
| (c) | No
Clearing Participant Agreement conflicts with the terms of any Finance Document in any material
respect. |
The Rules:
| (a) | are
in full force and effect; |
| (b) | are
legally binding and enforceable against the Clearing Participants subject to the Legal Reservations;
and |
| (c) | comply,
and do not breach or conflict with any law, regulation or Regulatory Authorisation applicable
to it. |
The expression "enforceable"
means that the obligations of a Clearing Participant under a Clearing Participant Agreement or the Rules are of a type which Dutch
courts enforce. It does not mean that they will necessarily be enforced in all circumstances in accordance with their terms.
The Company has no direct
or indirect Subsidiaries.
| (a) | The
Company and each other member of the Group has good title to, or valid leasehold interests
in, all its real and personal property required to conduct its business as currently conducted
where failure to do so would or could reasonably be expected to have a Material Adverse Effect. |
| (b) | The
Company, each other member of the Group owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property required to conduct its business as currently
conducted where failure to do so would or could reasonably be expected to have a Material
Adverse Effect. |
The computer and management
information systems of the Company and each other member of the Group material to the conduct of its business are and, with ordinary
course upgrading and maintenance, are expected for the term of this Agreement to be sufficient to permit the Company and each other member
of the Group to conduct their respective business without any Material Adverse Effect.
The Company and each other
member of the Group has filed all tax returns required to have been filed and has paid all taxes required to be paid by it except to
the extent that failure to do so would not and could not reasonably be expected to have a Material Adverse Effect.
| 20.22 | Sanctions
and anti-corruption |
| (a) | No
member of the Group nor, to the knowledge of the Company, any of their respective directors,
officers, agents or employees, have engaged in any activity or conduct which would violate
any anti-bribery, anti-corruption or anti-money laundering laws or regulations applicable
to it (other than Sanctions) in any applicable jurisdiction and each member of the Group
has instituted and maintained policies and procedures designed to promote and achieve compliance
with such laws. |
| (b) | No
member of the Group nor, to the knowledge of the Company, any of their respective directors,
officers, agents or employees is engaged in any transaction, activity or conduct that results
in it or them being: |
| (i) | in
breach of Sanctions; or |
| (ii) | a
Sanctions Restricted Person. |
| (c) | The
Company has implemented and maintains policies and procedures reasonably designed to ensure
compliance by the Company and each other member of the Group with Sanctions. |
Neither the making of any
Utilisation or Loan nor the use of proceeds of any Utilisation or Loan will violate the provisions of Regulations T, U or X.
| (a) | The
Company Repeating Representations are deemed to be made by the Company by reference to the
facts and circumstances then existing on the date of each Utilisation Request and the first
day of each Interest Period. |
| (b) | The
representations set out in Clause 20.13 (Collateral) are deemed to be made by the
Company by reference to the facts and circumstances then existing on each date on which there
is an Outstanding Facility Amount. |
| 21. | Representations
of the Guarantor |
The Guarantor makes the representations
and warranties set out in this Clause 21 to each Finance Party on 1 July 2020.
| (a) | It
is a corporation, duly incorporated and validly existing under the law of its jurisdiction
of incorporation. |
| (b) | It
has the power to own its assets and carry on its business as it is being conducted except
to the extent that failure to have such power could not reasonably be expected to have a
Guarantor Material Adverse Effect. |
Subject to the Legal Reservations,
the obligations expressed to be assumed by it in each Finance Document to which it is a party are legal, valid, binding and enforceable.
| 21.3 | Non-conflict
with other obligations |
The entry into and performance
by it of, and the transactions contemplated by, the Finance Documents to which it is a party do not and will not conflict with:
| (a) | any
law or regulation applicable to it; |
| (b) | its
articles of incorporation or bylaws; or |
| (c) | any
agreement or instrument binding upon it or any of its assets, |
except in each case referred
to in paragraph (a) or (c) above, to the extent that such conflict, individually or in the aggregate, would not reasonably
be expected to have a Guarantor Material Adverse Effect.
It has the power to enter
into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents
to which it is a party and the transactions contemplated by those Finance Documents.
| 21.5 | Validity
and admissibility in evidence |
All Authorisations required:
| (a) | to
enable it lawfully to enter into, exercise its rights and comply with its obligations under
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 Relevant
Jurisdiction (excluding, for the purpose of this provision, paragraph (c) of the definition
of "Relevant Jurisdiction"), |
have been obtained or effected
and are in full force and effect.
| 21.6 | Governing
law and enforcement |
| (a) | The
choice of governing law of the Finance Documents to which it is a party will be recognised
and enforced in its Relevant Jurisdiction (excluding, for the purpose of this provision,
paragraph (c) of the definition of "Relevant Jurisdiction") subject to the
Legal Reservations. |
| (b) | Any
judgment obtained in relation to a Finance Document to which it is a party in the jurisdiction
of the governing law of that Finance Document will be recognised and enforced in its Relevant
Jurisdiction (excluding, for the purpose of this provision, paragraph (c) of the definition
of "Relevant Jurisdiction") subject to the Legal Reservations. |
| 21.7 | No
filing or stamp taxes |
Under the law of its jurisdiction
of incorporation it is not necessary to ensure the legality, validity, enforceability or admissibility into evidence in such jurisdiction
that the Finance Documents to which it is a party be filed, recorded or enrolled with any court or other authority in that jurisdiction
or that any registration tax be paid on or in relation to those Finance Documents or the transactions contemplated by those Finance Documents
which has not been paid (except any such tax payable on or in reference to or in consequence of the transfer of the whole or any part
of the rights of a Finance Party under a Finance Document).
No Event of Default which
relates to the Guarantor is continuing or would result from the making of any Utilisation.
| 21.9 | No
misleading information |
| (a) | Any
factual information (other than any projections, forward-looking statements, budgets, estimates
or general market data as to which Guarantor advises that such information was prepared in
good faith on assumptions believed by it to be reasonable at the time) provided by the Guarantor
for the purposes of the Information Memorandum was true and accurate in all material respects
(in light of the circumstances in which such information was provided) as at the date it
was provided or as at the date (if any) at which it is stated. |
| (b) | Any
factual information (other than any projections, forward-looking statements, budgets, estimates
or general market data as to which Guarantor advises that such information was prepared in
good faith on assumptions believed by it to be reasonable at the time) provided in writing
on or before 1 July 2020 by the Guarantor to any Secured Party in connection with the
Facilities for the purposes of the Information Memorandum (the "Information")
was, taken as a whole, true and accurate in all material respects (in light of the circumstances
in which such Information was provided) as at the date it was provided or as at the date
(if any) at which it is stated. |
| (c) | Nothing
concerning the Guarantor has occurred or been omitted from the Information Memorandum and
no information has been given or withheld that results in the information provided by the
Guarantor and contained in the Information Memorandum or the Information (taken as a whole)
being untrue or misleading in any material respect (in light of the circumstances in which
such information was provided) as at 1 July 2020. |
| 21.10 | Financial
statements |
| (a) | Its
Original Financial Statements were prepared in accordance with GAAP consistently applied
except as otherwise expressly noted therein. |
| (b) | Its
Original Financial Statements fairly present its financial condition as at the end of the
relevant financial year and its results of operations as at the end of and for the relevant
financial year, in all material respects. |
Its payment obligations under
the Finance Documents to which it is a party rank at least pari passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by applicable law.
Neither it nor any of its
Subsidiaries is required to be registered as an "investment company" within the meaning of the United States Investment Company
Act of 1940 (15 USC. §§ 80a-1 et seq.).
The Guarantor is not insolvent
or unable to pay its debts (including subordinated and contingent debts), nor, in any such case, will it become so in consequence of
entering into any Finance Document to which it is expressed to be a party, and/or performing a transaction contemplated by any Finance
Document to which it is a party.
| 21.14 | Sanctions
and anti-corruption |
| (a) | No
member of the CGM Group nor, to the knowledge of the Guarantor, any of their respective directors,
officers, agents or employees, have engaged in any activity or conduct which would violate
any anti-bribery, anti-corruption or anti-money laundering laws or regulations applicable
to it (other than Sanctions) in any applicable jurisdiction and each member of the CGM Group
has instituted and maintained policies and procedures designed to promote and achieve compliance
with such laws. |
| (b) | No
member of the CGM Group nor, to the knowledge of the Guarantor, any of their respective directors,
officers, agents or employees is engaged in any transaction, activity or conduct that results
in it or them being: |
| (i) | in
breach of Sanctions; or |
| (ii) | a
Sanctions Restricted Person. |
| (c) | The
Guarantor has implemented and maintains policies and procedures reasonably designed to ensure
compliance by the Guarantor and each other member of the CGM Group with Sanctions. |
The Guarantor Repeating Representations
are deemed to be made by the Guarantor by reference to the facts and circumstances then existing on the date of each Utilisation Request
and the first day of each Interest Period.
| 22. | Information
undertakings |
The undertakings in this
Clause 22 remain in force from 1 July 2020 for so long as any amount is outstanding under the Finance Documents or any Commitment
is in force.
| (a) | The
Company shall supply to the Facility Agent in sufficient copies for all the Lenders: |
| (i) | as
soon as the same becomes available, but in any event within 180 days after the end of each
of the Company’s financial years: |
| (A) | the
audited consolidated financial statements of the Company for that financial year; and |
| (B) | the
audited financial statements of the Guarantor for that financial year; |
| (ii) | as
soon as the same become available, but in any event within 90 days after the end of each
of the Company’s financial half-year ending on 30 June, the consolidated financial
statements of the Company for that financial half year; and |
| (iii) | as
soon as the same becomes available, but in any event within 45 days after the end of each
Financial Quarter commencing on 1 January and 1 July in each Financial Year: |
| (A) | its
consolidated financial statements for that Financial Quarter; and |
| (B) | the
financial statements of the Guarantor for each Financial Quarter, as filed with the United
States Securities and Exchange Commission. |
| (b) | Each
set of quarterly financial statements delivered pursuant to paragraph (a)(iii) above
shall include: |
| (i) | a
consolidated cash flow statement and profit and loss account for the relevant Financial Quarter
and for the financial year to date; and |
| (ii) | a
consolidated balance sheet as at the end of the relevant Financial Quarter. |
| (c) | Provided
in each case that the relevant financial statements meet the requirements stipulated in paragraphs
(a) and (b) above, such financial statements shall be deemed to have been delivered
by the Company or the Guarantor (as the case may be) if such financial statements are delivered
electronically in accordance with Clause 34.6 (Electronic communication) or otherwise
posted on EDGAR of the U.S. Securities and Exchange Commission. |
| (d) | Other
than in the event the financial statements of the Guarantor in respect of the Financial Quarter
commencing on 1 October in each Financial Year (the “Fourth Quarter”)
are published by the Guarantor separately from its audited financial statements for that
full financial year and filed with the U.S. Securities and Exchange Commission, the Company
shall not be required to supply the financial statements of the Guarantor for the Fourth
Quarter. |
| 22.2 | Compliance
Certificate |
| (a) | The
Company shall supply to the Facility Agent, with each set of financial statements delivered
pursuant to paragraphs (a)(i)(A), (ii) and (iii)(A) of Clause 22.1
(Financial statements), a Compliance |
| | Certificate setting out (in reasonable detail) computations as to compliance with Clause 23.17 (Minimum
liquidity requirement) and Clause 23.18 (Tangible Net Worth and Guarantor Net Worth) as at the
date as at which those financial statements were drawn up. |
| | |
| (b) | Each
Compliance Certificate shall be signed by either the chief executive officer, the chief operating
officer, the chief financial officer, the treasurer or the assistant treasurer of the Company. |
| 22.3 | Requirements
as to financial statements |
| (a) | Each
set of financial statements delivered by the Company pursuant to Clause 22.1
(Financial statements) shall be certified by either the chief executive officer, the
chief operating officer, the chief financial officer, the treasurer or the assistant treasurer
of the Company as fairly presenting its (or, as the case may be, its consolidated) financial
condition as at the end of and for the period in relation to which those financial statements
were drawn up. |
| (b) | The
Company shall procure that each set of financial statements delivered pursuant to Clause
22.1 (Financial
statements) is prepared using GAAP, accounting practices and financial reference periods
consistent with those applied in the preparation of the Original Financial Statements for
the Company 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. |
On each day on which there
is an Outstanding Facility Amount, the Company shall deliver (or shall ensure that the Collateral Monitor delivers) to the Facility Agent
and the Security Agent (and, if applicable, the relevant Swingline Agent) a Collateral Report in accordance with paragraph 8 (Collateral
Reports) of Part I of Schedule 6 (Borrowing Base).
| 22.5 | Information:
miscellaneous |
The Company shall supply
to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests):
| (a) | all
documents despatched by the Company to: |
| (i) | its
creditors generally; |
| (ii) | its
Clearing Participants generally (including any notices of changes to the Rules); and |
| (iii) | any
notices, reports or other communications (or an appropriate summary of them) to or from the
DNB and/or the AFM which are material for the purposes of Clause 20.1 (Status), 23.17
(Minimum liquidity requirement) or 23.18 (Tangible Net Worth and Guarantor Net
Worth), |
provided that, in each case,
the Company may satisfy its obligation to deliver any information under this Clause 22.5 by posting that information to its website (clear.cboe.com);
| (b) | promptly
upon becoming aware of them, the details of any material litigation, arbitration, regulatory
or administrative actions, investigations or proceedings or any challenge to the enforceability
or perfection of any Security or Collateral which are current, threatened or pending against
any member of the Group, and which are reasonably likely to be adversely determined and which,
if adversely determined, would or could reasonably be expected to have a Material Adverse
Effect; |
| (c) | promptly
upon becoming aware of them, the details of any judgment or order of a court, arbitral body
or agency which is made against any member of the Group, and which are reasonably likely
to be adversely determined and which, if adversely determined, would or could reasonably
be expected to have a Material Adverse Effect; |
| (d) | promptly,
such other 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;
and |
| (e) | promptly
upon becoming aware of them, the details of any event which has or could reasonably be foreseen
as likely to have a Material Adverse Effect provided that, when determining whether any event
or circumstance has or could reasonably be expected to have a Material Adverse Effect, no
regard shall be given to: |
| (i) | any
event or circumstance disclosed in the Information Memorandum or any financial statements
delivered to the Facility Agent under or in connection with this Agreement; or |
| (ii) | the
business, financial condition, operations, performance or assets of: |
| (A) | any
Clearing Participant; |
| (B) | any
Co-operating Clearing House; |
| (C) | any
issuer of any security processed through the Clearing System of the Company; or |
| (D) | the
Custodians and/or the Collateral Monitor, |
except to the extent such
event or circumstance directly affects the Company's ability to carry on its operations as a central counterparty in accordance with
the Rules.
| 22.6 | Notification
of default |
| (a) | The
Company shall notify the Facility Agent of any Default (and the steps, if any, being taken
to remedy it) promptly upon becoming aware of its occurrence. |
| (b) | Promptly
upon a request by the Facility Agent, the Company shall supply to the Facility Agent a certificate
signed by the chief executive officer, the chief operating officer, the chief financial officer,
the treasurer or the assistant treasurer of the Company certifying that no Default is continuing
(or, if a Default is continuing, specifying the Default and the steps, if any, being taken
to remedy it). |
| (a) | Subject
to the provisions of paragraph (a) of Clause 22.5 (Information: miscellaneous),
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; |
| (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 shall notify the Company
accordingly and the Company shall supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender)
in paper form. In any event the Company shall 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 shall 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 shall promptly upon 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. |
If the Company notifies the
Facility Agent under paragraph (c)(i) or (v) above, all information to be provided by the Company under this Agreement after
the date of that notice shall 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.
| (d) | 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 shall comply with any such request within 10 Business Days. |
| 22.8 | "Know
your customer" checks |
| (i) | the
introduction of or any change in (or in the interpretation, administration or application
of) any law or regulation made after the 1 July 2020; |
| (ii) | any
change in the status of an Obligor (or of a Holding Company of an Obligor) after the 1 July 2020; |
| (iii) | a
proposed assignment or transfer by a Lender of any of its rights and obligations under this
Agreement to a party that is not a Lender prior to such assignment or transfer; or |
| (iv) | any
material change in the composition of the shareholders of an Obligor after 1 July 2020
(for this purpose, "material" means a change which results in any person beneficially
owning in aggregate 15 per cent. or more in nominal value of that Obligor's issued share
capital), |
obliges an Agent or any Lender
(or, in the case of paragraph (iii) above, any prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly
upon the
request of that Agent or
any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by that Agent (for itself
or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf
of any prospective new Lender) in order for that Agent, such Lender or, in the case of the event described in paragraph (iii) above,
any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar
checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
| (b) | Each
Lender shall promptly upon the request of an Agent supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by that Agent (for itself) in
order for that Agent to carry out and be satisfied it has complied with all necessary "know
your customer" or other similar checks under all applicable laws and regulations pursuant
to the transactions contemplated in the Finance Documents. |
| (c) | Promptly
following any request therefor, each of the Obligors shall provide information and documentation
reasonably requested by the Facility Agent or any Lender for purposes of compliance with
applicable "know your customer" requirements under the USA Patriot Act, the Beneficial
Ownership Regulation or other applicable anti-money laundering laws. |
| 23. | Company
general undertakings |
The undertakings in this
Clause 23 remain in force from 1 July 2020 for so long
as any amount is outstanding under the Finance Documents or any Commitment is in force.
| (a) | The
Company shall promptly obtain, comply with and do all that is necessary to maintain in full
force and effect: |
| (i) | any
Authorisation required under any applicable law or regulation to enable it to perform its
obligations under the Finance Documents to which it is a party and to ensure the legality,
validity, enforceability or admissibility in evidence in its jurisdiction of incorporation
of any Finance Document; and |
| (ii) | any
Regulatory Authorisation. |
| (b) | The
Company shall maintain, comply with and do all that is necessary to maintain in full force
and effect its status as a recognised Qualifying Central Counterparty by the DNB and the
AFM under EMIR and the Dutch Financial Supervision Act. |
The Company shall comply
in all respects with all laws and regulations to which it may be subject, if failure so to comply would materially impair its ability
to perform its obligations under the Finance Documents to which it is a party.
In this Clause 23.3, "Quasi-Security"
means an arrangement or transaction described in paragraph (b) below.
| (a) | The
Company shall not (and the Company shall ensure that no other member of the Group will) create
or permit to subsist any Security over any of its assets. |
| (b) | The
Company shall not (and the Company shall ensure that no other member of the Group will): |
| (i) | sell,
transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased
to or re-acquired by an Obligor or any other 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.
| (c) | Subject
to paragraph (d) below, paragraphs (a) and (b) above do not apply to any Security
or (as the case may be) Quasi-Security, listed below: |
| (i) | the
Transaction Security; |
| (ii) | any
Security, Quasi-Security or right of set-off created by the Company over deposits, collateral
and/or margin (or the like) provided by it to a Co-operating Clearing House under a Link
Agreement or otherwise as a result of it becoming a clearing participant in any other system
for the clearance or settlement of transactions in securities and with which it establishes
inter-operability arrangements; |
| (iii) | any
lien, pledge or other Security or Quasi-Security routinely imposed under the rules of
a clearance or depositary system as a condition of holding or settling securities in such
system; |
| (iv) | any
lien arising by operation of law and in the ordinary course of the Company's business as
operator of the Clearing System; |
| (v) | any
netting or set-off arrangement entered into by the Company in the ordinary course of its
banking arrangements for the purpose of netting debit and credit balances or, any Security
created by the Company, to the extent required in the Netherlands in connection with cash
pooling arrangements; |
| (vi) | any
netting or set-off arrangement available to a Co-operating Clearing House under a Link Agreement
or to a Clearing Participant, in each case, in relation to any transaction to which the Rules relate; |
| (vii) | any
Security or Quasi-Security arising under any retention of title, hire purchase or conditional
sale arrangement or arrangements having similar effect in respect of goods supplied to the
Company and entered into in the ordinary course of its business; |
| (viii) | any
Security arising under clause 24 or 25 of the general banking conditions (algemene bankvoorwaarden)
of any member of the Dutch Bankers' Association; |
| (ix) | any
Security or Quasi-Security arising as a consequence of any liability in respect of any lease
or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet
liability permitted under the Finance Documents and entered into in the ordinary course of
business; |
| (x) | any
Security or Quasi-Security over or affecting any asset acquired by the Company in the normal
course of business if the Security or Quasi-Security was created to secure any indebtedness
incurred by the Company to finance the acquisition of that asset; |
| (xi) | any
Security or Quasi-Security securing the obligations of the Company under any Liquidity Financings
(to the extent such financing is not available from the Lenders under a Facility; |
| (xii) | any
agreement to reacquire any assets (other than any Security Assets) sold, transferred or otherwise
disposed of, where the agreement is entered into in the ordinary course of trading as a securities
clearing system; |
| (xiii) | any
Security or Quasi-Security securing indebtedness the principal amount of which (when aggregated
with the principal amount of any other indebtedness which has the benefit of Security or
Quasi-Security other than any permitted under paragraphs (i) to (xii) above) does
not exceed €10,000,000 (or its equivalent in another currency or currencies); or |
| (xiv) | any
payment, close out netting or set-off arrangement pursuant to any Hedging Agreement enter
into by the Company for non-speculative purposes. |
| (d) | The
Company shall not (and the Company shall ensure that no other member of the Group will) create
or permit to subsist any Security or Quasi-Security over any of the Security Assets, other
than the Security or Quasi-Security created pursuant to any of the Security Documents and
paragraph (c) above shall not otherwise apply to any Security Assets. |
| (a) | The
Company shall not (and the Company shall ensure that no other member of the Group will) enter
into a single transaction or a series of transactions (whether related or not and whether
voluntary or involuntary) to sell, lease, transfer or otherwise dispose of any asset. |
| (b) | Paragraph
(a) above does not apply to any sale, lease, transfer or other disposal of an asset
(other than any Security Asset): |
| (i) | made
in the ordinary course of trading as a securities clearing system; |
| (ii) | of
assets in exchange for other assets or interests of substantially equivalent value (other
than an exchange of a non-cash asset for cash); |
| (iii) | of
assets by a member of the Group to another member of the Group (other than the Clearing System
itself); |
| (iv) | which
is the provision by the Company of any deposit, collateral and/or margin (or similar) to
any central securities depository, central counterparty or system for the clearance and settlement
of transactions in securities with which it established inter-operability or other linked
arrangements; or |
| (v) | 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 sale, lease, transfer or other
disposal, other than any permitted under paragraphs (i) to (iv) above) does not
exceed €10,000,000 (or its equivalent in another currency or currencies) in any financial
year of the Company. |
| (c) | Paragraph
(a) above does not apply to any sale, lease, transfer or other disposal in the ordinary
course of trading of any Collateral for cash, provided that the proceeds of such disposal
are paid into the relevant Collateral Cash Account(s) in accordance with paragraph 10
(Collateral Accounts) of Part I of Schedule 6 (Borrowing Base). |
| (d) | For
the purposes of paragraph (b)(i) above, the delivery of securities by the Company and
disposals and transfers carried out pursuant to the Rules or a Link Agreement (including
where a Clearing Participant or a Co-operating Clearing House defaults on its obligations
or the Company ceases to act for a Clearing Participant) shall constitute a disposal in the
ordinary course of trading and is permitted under paragraph (b)(i) above. |
| (a) | The
Company shall not (and the Company shall ensure that no other member of the Group will) enter
into any amalgamation, demerger, merger or corporate reconstruction. |
| (b) | Paragraph
(a) above does not apply to: |
| (i) | any
amalgamation, demerger or merger between any company (including a Subsidiary of the Company)
and the Company, provided that: |
| (A) | the
Company is the surviving legal entity; and |
| (B) | the
Company has demonstrated to the satisfaction of the Facility Agent (acting reasonably) that
any such amalgamation, demerger or merger does not adversely affect the validity or enforceability
of any of the Company's obligations under any Finance Document or any Transaction Security
(or the priority of that Transaction Security) provided by the Company for the benefit of
the Lenders; and |
| (ii) | any
sale, lease, transfer or other disposal permitted pursuant to Clause 23.4 (Disposals). |
| (a) | The
Company shall not (and the Company shall ensure that no other member of the Group will) declare
or make, or agree to pay or make, directly or indirectly, any Restricted Payment if a Default
is continuing or would occur as a result of a Restricted Payment being made. |
| (b) | Paragraph
(a) above shall not apply to: |
| (i) | any
rebate due and payable to a Clearing Participant or a Co-operating Clearing House in accordance
with the Rules (excluding any voluntary rebate); |
| (ii) | any
payments to the Custodians and the Collateral Monitor in accordance with the terms of the
agreement between the Company and the Custodians and the Collateral Monitor; or |
| (iii) | any
payment by a member of the Group to another member of the Group. |
| 23.7 | Transactions
with Affiliates |
| (a) | The
Company will not (and the Company shall procure that no other member of the Group will) enter
into any contract or arrangement with or for the benefit of any Affiliate (including a disposal
to that Affiliate). |
| (b) | Paragraph
(a) above does not apply to: |
| (i) | any
arrangement that would not or is not reasonably foreseen as likely to have a Material Adverse
Effect; |
| (ii) | a
transaction which is on arm's length terms; and |
| (iii) | any
transaction falling within paragraph (b) of Clause 23.4 (Disposals). |
The Company will not (and
the Company shall ensure that no member of the Group will) enter into any Hedging Agreements for speculative purposes.
The Company shall procure
that no material change is made to the general nature of the business of the Company or the Group from that carried on on 1 July 2020,
but without prejudice to its ability to extend the Clearing System to new markets or products.
| 23.10 | Maintenance
of assets |
The Company shall (and the
Company shall procure that each other member of the Group will):
| (a) | keep
and maintain all property material to the conduct of its business in good working order and
condition, save for fair wear and tear; and |
| (b) | keep
and maintain all computer and management information systems material to the conduct of its
business, |
where failure to do so would
have or could reasonably be foreseen as likely to have a Material Adverse Effect.
The Company shall (and the
Company shall ensure that each other member of the Group will) maintain insurances on and in relation to its business and physical assets
with reputable underwriters or insurance companies against those risks, and to the extent, usually insured against by prudent companies
located in the same or a similar location and carrying on a similar business, where failure to do so would have or could reasonably be
foreseen as likely to have a Material Adverse Effect.
The Company shall (and the
Company shall ensure that each other member of the Group will) pay all Taxes required to be paid by it within the time period allowed
for payment without incurring any penalties for non-payment where failure to do so would have or could reasonably be foreseen as likely
to have a Material Adverse Effect.
| 23.13 | Constitutional
documents and Rules |
| (a) | The
Company shall comply in all material respects with its Rules. |
| (b) | The
Company shall not (and the Company shall ensure that no other member of the Group will) amend
its constitutional documents or the Rules from the form in which they were delivered
as a condition precedent in accordance with Schedule 2 (Conditions precedent to initial
utilisation), other than an amendment which could not reasonably be expected to be materially
adverse to the interests of the Finance Parties under the Finance Documents. |
The Company shall establish
and maintain the Collateral Accounts.
The Company shall comply
with the provisions of Schedule 6 (Borrowing Base).
| 23.16 | Maintenance
of minimum amount |
The Company shall, to the
extent that it is entitled to do so under the terms of the Rules, ensure that, at all times, the aggregate of:
| (a) | each
Clearing Participant's contribution to the Clearing Fund outstanding at that time; and |
| (b) | each
Clearing Participant's Margin Amount at that time; and |
| (c) | any
cash equities purchased using the proceeds of, or by exchanging or trading, the assets described
in paragraphs (a) and (b) above, |
less:
| (d) | the
amount of any such contribution, Margin Amount or cash equities which has been transferred
to, or is subject to Security (save for any Security created pursuant to this Agreement)
in favour of, any provider of settlement or custody services to the Company, |
| | |
| is not less than €500,000,000. |
| 23.17 | Minimum
liquidity requirement |
The Company shall ensure
that it maintains, at all times, financial resources equal to or in excess of those required under EMIR for Qualifying Central Counterparties.
| 23.18 | Tangible
Net Worth and Guarantor Net Worth |
| (a) | The
Company shall ensure that: |
| (i) | at
all times, its Tangible Net Worth on a consolidated basis is the higher of: |
| (B) | any
such amount as is required for the Company to comply with the minimum regulatory capital
requirement under EMIR for Qualifying Central Counterparties; and |
| (ii) | as
at every Relevant Delivery Date, the Net Worth of the Guarantor on a consolidated basis is
equal to or greater than U.S.$1,750,000,000, provided that reductions in Net Worth during
the term of this Agreement resulting solely from changes in GAAP after 1 July 2020 shall
not be taken into account. |
| (b) | For
the purposes of paragraph (a)(ii) above, "Relevant Delivery Date" means
each of the following: |
| (i) | the
date of any Utilisation Request delivered pursuant to this Agreement; |
| (ii) | the
Utilisation Date; and |
| (iii) | the
date of any Compliance Certificate delivered pursuant to this Agreement. |
| (a) | Each
Obligor shall (and the Company shall ensure that each other member of the Group will), at
its own expense, promptly take all such action as the Facility Agent or the Security Agent
may reasonably require: |
| (i) | for
the purpose of perfecting or protecting any of the Finance Parties' rights under, and preserving
the Security created or intended to be created under or evidenced by the Security Documents;
and |
| (ii) | for
the purpose of facilitating the realisation of the assets which are, or are intended to be,
the subject of the Transaction Security, |
including the execution of
any transfer, conveyance, assignment or assurance of any asset and the giving of any notice, order or direction and the making of any
registration which the Facility Agent or the Security Agent may reasonably require.
| (b) | No
Obligor shall (and the Company shall ensure that no other member of the Group will) do, or
consent to the doing of, anything which could reasonably be expected to prejudice the validity,
enforceability or priority of any Security conferred or intended to be conferred on the Security
Agent or the Secured Parties by or pursuant to the Finance Documents. |
The Company shall use the
proceeds of the Loans without violating Regulation T, U or X or any applicable U.S. federal or state laws or regulations.
| 23.21 | Sanctions
and anti-corruption |
| (a) | The
Company shall not (and the Company shall ensure that no member of the Group will) directly
or indirectly use any monies advanced under any Facility or lend, contribute or otherwise
make available such monies to any Subsidiary or other person where the purpose or effect
of such monies being used, lent, contributed or otherwise made available: |
| (i) | is
to fund or facilitate any activity that would at that time be in breach of Sanctions or be
an activity with, or for the benefit of, a Sanctions Restricted Person; or |
| (ii) | could
reasonably be expected to result in a breach of Sanctions by a Finance Party. |
| (b) | The
Company shall not (and the Company shall ensure that no member of the Group will) directly
or indirectly fund all or any part of a payment to a Finance Party out of proceeds derived
from any business or transaction which is prohibited by Sanctions, which is with a Sanctions
Restricted Person or which would otherwise result in a breach of Sanctions by a Finance Party. |
| (c) | The
Company shall (and the Company shall ensure that each member of the Group will) comply in
all respects with applicable Sanctions. |
| (d) | The
Company shall (and the Company shall ensure that each member of the Group will) implement
and maintain appropriate policies and procedures reasonably designed to: |
| (i) | prevent
any action being taken which would be contrary to paragraph (a) or (b) above; and |
| (ii) | ensure
compliance with applicable Sanctions. |
| (e) | The
Company shall not (and the Company shall ensure that each member of the Group will not) engage
in any activity or conduct which would violate anti-bribery, anti-corruption or anti-money
laundering laws or regulations applicable to it (other than Sanctions). |
| (f) | The
Company shall (and the Company shall ensure that each member of the Group will) maintain
policies and procedures reasonably designed to promote and achieve compliance with such laws
or regulations. |
| 24. | Guarantor
general undertakings |
The undertakings in this
Clause 24 remain in force from 1 July 2020 for so long as any amount is outstanding under the Finance Documents or any Commitment
is in force.
The Guarantor shall promptly
obtain, comply with and do all that is necessary to maintain in full force and effect any Authorisation required under any applicable
law or regulation to enable it to perform its obligations under the Finance Documents to which it is a party and to ensure the legality,
validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document, except where failure
to do so could not reasonably be expected to have a Guarantor Material Adverse Effect.
The Guarantor shall comply
in all respects with all laws and regulations to which it is subject, if failure so to comply would materially impair its ability to
perform its obligations under the Finance Documents to which it is a party.
| 24.3 | Sanctions
and anti-corruption |
| (a) | The
Guarantor shall not (and the Guarantor shall ensure that no member of the CGM Group will)
directly or indirectly use any monies advanced under any Facility or lend, contribute or
otherwise make available such monies to any Subsidiary or other person where the purpose
or effect of such monies being used, lent, contributed or otherwise made available: |
| (i) | is
to fund or facilitate any activity that would at that time be in breach of Sanctions or be
an activity with, or for the benefit of, a Sanctions Restricted Person; or |
| (ii) | could
reasonably be expected to result in a breach of Sanctions by a Finance Party. |
| (b) | The
Guarantor shall not (and the Guarantor shall ensure that no member of the CGM Group will)
directly or indirectly fund all or any part of a payment to a Finance Party out of proceeds
derived from any business or transaction which is prohibited by Sanctions, which is with
a Sanctions Restricted Person or which would otherwise result in a breach of Sanctions by
a Finance Party. |
| (c) | The
Guarantor shall (and the Guarantor shall ensure that each member of the CGM Group will) comply
in all respects with applicable Sanctions. |
| (d) | The
Guarantor shall (and the Guarantor shall ensure that each member of the CGM Group will) implement
and maintain appropriate policies and procedures reasonably designed to: |
| (i) | prevent
any action being taken which would be contrary to paragraph (a) or (b) above; and |
| (ii) | ensure
compliance with applicable Sanctions. |
| (e) | The
Guarantor shall not (and the Guarantor shall ensure that each member of the CGM Group will
not) engage in any activity or conduct which would violate anti-bribery, anti-corruption
or anti-money laundering laws or regulations applicable to it (other than Sanctions). |
| (f) | The
Guarantor shall (and the Guarantor shall ensure that each member of the CGM Group will) maintain
policies and procedures reasonably designed to promote and achieve compliance with such laws
or regulations. |
| (g) | Any
provision of this Clause 24.3, Clause 23.21 (Sanctions and anti-corruption), Clause
21.14 (Sanctions and anti-corruption) or Clause 20.22 (Sanctions and anti-corruption)
shall not apply to or in favour of any person if and to the extent that it would result in
a breach, by or in respect of that person, of any applicable Blocking Law. |
| (h) | For
the purposes of this Clause 24.3, "Blocking Law" means: |
| (i) | any
provision of Council Regulation (EC) No 2271/1996 of 22 November 1996 (or any law or
regulation implementing such Regulation in any member state of the European Union); |
| (ii) | any
provision of Council Regulation (EC) No 2271/1996 of 22 November 1996, as it forms part
of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018;
or |
| (iii) | section
7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung). |
Each of the events or circumstances
set out in this Clause 25 is an Event of Default (save for
Clause 25.15 (Acceleration)).
An Obligor does not pay on
the due date any amount payable by it pursuant to a Finance Document at the place at 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 three Business Days of its due date. |
| (a) | An Event of Default occurs as described
in paragraph 1(b), 8(c) or 17(e) of Part I of Schedule 6 (Borrowing Base). |
| (b) | Any representation made or deemed to
be made in Clause 20.13 (Collateral) is or proves to have been incorrect or misleading
in any material respect when made or deemed to be made. |
| (c) | No Event of Default under paragraph (b) above
will occur if the failure to comply is capable of remedy and is remedied within five Business
Days of the earlier of (i) the Facility Agent giving notice to the Company and (ii) the
Company becoming aware of the failure to comply. For the avoidance of doubt, if a breach
of paragraph (b) above also gives rise to an Event of Default as described in paragraph
(a) above, the provisions of paragraph (a) above shall apply. |
| (a) | An Obligor does not comply with any provision
of the Finance Documents (other than those referred to in Clause 25.1 (Non-payment)
or Clause 25.2 (Borrowing Base)). |
| (b) | No Event of Default under paragraph (a) above
will occur if the failure to comply is capable of remedy and is remedied within 10 Business
Days of the earlier of (i) the Facility Agent giving notice to the Company and (ii) the
Company becoming aware of the failure to comply. |
| (a) | Any representation or statement made
or deemed to be made by an Obligor in the Finance Documents or any other document delivered
by or on behalf of any Obligor under or in connection with any Finance Document (other than
those referred to in paragraph (b) of Clause 25.2 (Borrowing Base)) is or proves
to have been incorrect or misleading in any material respect when made or deemed to be made. |
| (b) | No Event of Default under paragraph (a) above
will occur if the failure to comply is capable of remedy and is remedied within 10 Business
Days of the earlier of (i) the Facility Agent giving notice to the Company and (ii) the
Company becoming aware of the failure to comply. |
| (a) | Any Financial Indebtedness of an Obligor
or any member of the Group is not paid when due nor within any originally applicable grace
period. |
| (b) | Any Financial Indebtedness of an Obligor
or any member of the Group is declared to be or otherwise becomes due and payable prior to
its specified maturity as a result of an event of default (however described). |
| (c) | Any commitment for any Financial Indebtedness
of an Obligor or any member of the Group is cancelled or suspended by a creditor of any member
of the Group as a result of an event of default (however described). |
| (d) | Any creditor of an Obligor or any member
of the Group becomes entitled to declare any Financial Indebtedness of an Obligor or any
member of the Group due and payable prior to its specified maturity as a result of an event
of default (however described). |
| (e) | Any Clearing Participant sends the Company
a Notice of Termination in relation to a CCE Default Event (each term as defined in the Rules)
in accordance with article 15 (Close out netting) of the Rules. |
| (f) | No Event of Default will occur under
this Clause 25.5
if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness
falling within paragraphs (a) to (e) above is (in the case of the Company and its
Subsidiaries) less than €25,000,000 (or its equivalent in any other currency or currencies)
or (in the case of the Guarantor) less than U.S.$50,000,000 (or its equivalent in any other
currency or currencies). |
| (a) | The Company or a member of the Group: |
| (i) | is unable or admits inability to pay
its debts as they fall due; |
| (ii) | suspends making payments on any of
its debts; or |
| (iii) | 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) | The value of the assets of any member
of the Group, other than any member of the Group incorporated in the Netherlands is less
than its liabilities (taking into account contingent and prospective liabilities). |
| (c) | A moratorium is declared in respect of
any indebtedness of the Company or any member of the Group. |
| (d) | A Dutch Group Member gives notice to
the Dutch tax authorities under section 36(2) of the Dutch 1990 Tax Collection Act (Invorderingswet
1990). |
| 25.7 | Insolvency proceedings |
| (a) | 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 the Company or any member of
the Group other than a solvent liquidation or reorganisation of any member of the Group which
is not an Obligor; |
| (ii) | a composition, compromise, assignment
or arrangement with any creditor of the Company or any member of the Group; |
| (iii) | the appointment of a liquidator (other
than in respect of a solvent liquidation of a member of the Group which is not an Obligor),
receiver, administrative receiver, administrator, |
compulsory
manager or other similar officer in respect of the Company or any member of the Group or any of its assets; or
| (iv) | enforcement of any Security over any
assets of the Company or any member of the Group, |
or any analogous procedure
or step is taken in any jurisdiction.
| (b) | In respect of a Dutch Group Member, a
reference in this Clause 25 to: |
| (i) | the "suspension of payments"
or a "moratorium" includes surséance van betaling; |
| (ii) | an "administrator" includes
a bewindvoerder; |
| (iii) | a "receiver" includes a
curator; and |
| (iv) | "a winding-up", "administration"
or "dissolution" includes failliet verklaard and ontbonden. |
| (c) | This Clause 25.7
shall not apply to any winding-up petition presented by any person (other than a member of
the Group) which is frivolous or vexatious or any other application, proceeding or procedure
made or taken by any such person which is an abuse of legal process and in any such case
and is discharged, stayed, dismissed or withdrawn within 10 Business Days of commencement
and before any order is made. |
Any expropriation, attachment,
sequestration, distress or execution (including by way of executory attachment (executoriaal beslag) or interlocutory attachment
(conservatoir beslag)) affects any asset or assets of an Obligor or a member of the Group having an aggregate value of €10,000,000
and is not discharged within:
| (a) | in the case of an executory attachment,
10 Business Days; and |
| (b) | in the case of an interlocutory attachment,
15 days. |
| 25.9 | Failure to comply with judgment |
An Obligor or any member of
the Group fails to comply with, or pay any sum due from it, under any judgment or order made or given by any court which is greater than
or equal to €10,000,000 and which remains undischarged for a period of 30 days or more.
| (a) | It is or becomes unlawful for an Obligor
to perform any of its obligations under the Finance Documents in any material respect or
any Transaction Security created or expressed to be created or evidenced by the Security
Documents ceases to be effective. |
| (b) | Any obligation or obligations of any
Obligor under any Finance Documents are not or cease to be legal, valid, binding or enforceable
and the cessation individually or cumulatively materially and adversely affects the interests
of the Secured Parties under the Finance Documents. |
An Obligor repudiates a Finance
Document or evidences an intention to repudiate a Finance Document or any of the Transaction Security.
Any Security Document is not
in full force and effect or does not create in favour of the Security Agent for the benefit of the Secured Parties the Security which
it is expressed to create with the ranking and priority it is expressed to have.
| 25.13 | Cessation of business |
The Company suspends or ceases
to carry on (or threatens to suspend or cease to carry on) all or a substantial part of its business.
| 25.14 | U.S. insolvency proceedings |
The Guarantor:
| (a) | applies
for, or consents to, the appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner or liquidator of itself or of all or a substantial part of its property; |
| (b) | makes
a general assignment for the benefit of its creditors; |
| (c) | commences
a voluntary case under U.S. Bankruptcy Law; |
| (d) | files
a petition with respect to itself seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganisation, liquidation, dissolution, arrangement or winding
up, or composition or readjustment of debts; |
| (e) | takes
any corporate action for the purpose of effecting any of the foregoing with respect to itself; |
| (f) | is
unable or admits inability to pay its debts as they fall due, suspends making payments on
any of its debts or, by reason of actual or anticipated financial difficulties; or |
| (g) | is
the subject of involuntary proceedings under U.S. Bankruptcy Law, if such proceedings have
not been dismissed or stayed within 60 days of commencement thereof, or if an order for relief
has been entered in any such proceedings. |
| (a) | On and at any time after the occurrence
of an Event of Default, other than an Event of Default referred to in paragraph (b) below,
the Facility Agent may, and shall if so directed by the Majority Lenders, by notice to the
Company: |
| (i) | cancel the Total Commitments whereupon
they shall immediately be cancelled; |
| (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, whereupon they shall become immediately due and
payable; |
| (iii) | declare that all or part of the Loans
be payable on demand, whereupon they shall immediately become payable on demand by the Facility
Agent on the instructions of the Majority Lenders; and/or |
| (iv) | exercise or direct the Security Agent
to exercise any or all of its rights, remedies, powers or discretions which have become exercisable
under the Finance Documents. |
| (b) | If an Event of Default occurs under Clause
25.14 (U.S. insolvency proceedings), each amount expressed by Clause 19 (Guarantee
and indemnity) to be payable by the Guarantor on demand shall, after that Event of Default
has occurred, be immediately due and payable by the Guarantor without the need for any demand
or other claim on the Guarantor or any other Obligor. |
SECTION 9
CHANGES TO PARTIES
| 26. | Changes
to the Lenders |
| 26.1 | Assignments and transfers
by the Lenders |
Subject to this Clause 26,
a Lender (the "Existing Lender") may:
| (a) | assign
any of its rights; or |
| (b) | transfer
by novation any of its rights and obligations |
to:
| (i) | another bank or financial institution
which is (or an Affiliate of which is) able and willing to be a Swingline Lender under a
Swingline Facility and comply with the applicable Specified Times; or |
| (ii) | (but only if a Default is continuing)
any bank or financial institution or trust, fund or other entity which is regularly engaged
in or established for the purpose of making, purchasing or investing in loans, securities
or other financial assets, |
(each such bank, financial
institution, trust, fund or other entity being a "New Lender") provided that the assignment or transfer by any Lender
is in an amount not less than (if no Default is continuing) €5,000,000 or (if a Default is continuing) €1,000,000 or, in each
case, if less, the full amount of that Lender's Commitment in relation to that Facility.
| (a) | Subject to paragraph (b) below,
the consent of the Company and the Guarantor is required for an assignment or transfer by
an Existing Lender, unless the assignment or transfer is: |
| (i) | to another Lender or an Affiliate of
any Lender (in each case, acting as principal); or |
| (ii) | made at a time when a Default is continuing. |
| (b) | The consent of the Company and the Guarantor
is required at all times where the proposed transfer is to a person which carries on a business
competing with the Company's business. |
| (c) | The consent of the Company and the Guarantor
to an assignment or transfer must not be unreasonably withheld or delayed. Each of the Company
and the Guarantor will be deemed to have given its consent five Business Days after the Existing
Lender has requested it unless consent is expressly refused by the Company and the Guarantor
within that time. |
| (d) | The Parties agree that any refusal by
the Company or the Guarantor to consent to a transfer to: |
| (i) | a person which carries on business
competing with the Company's business; or |
| (ii) | a person which is not an Acceptable
Bank, |
shall not, in each case, be
deemed unreasonable.
| 26.3 | Other conditions of assignment or
transfer |
| (a) | An assignment will only be effective
on: |
| (i) | receipt by the Facility Agent (whether
in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in
form and substance satisfactory to the |
Facility Agent) that the New Lender will assume the
same obligations to the other Finance Parties as it would have been under if it was an Original
Lender; and
| (ii) | performance by the relevant Agent
of all necessary "know your customer" or other similar checks under all applicable
laws and regulations in relation to such assignment to a New Lender, the completion of which
the relevant Agent shall promptly notify to the Existing Lender and the New Lender. |
| (b) | A transfer will only be effective if
the procedure set out in Clause 26.6
(Procedure for transfer) is complied with. |
| (c) | Any assignment or transfer by an Existing
Lender to a New Lender shall only be effective if: |
| (i) | in the case of a transfer by an Existing
Lender of any amount of its Revolving Facility Commitment (other than to an Affiliate of
that Existing Lender): |
| (A) | that Existing Lender transfers at the
same time the same amount of its Swingline Commitment applicable to that Revolving Facility
to the New Lender or an Affiliate of the New Lender; or |
| (B) | if that Existing Lender does not have
a Swingline Commitment applicable to that Revolving Facility, its Related Lender transfers
at the same time the same amount of that Related Lender's Swingline Commitment applicable
to that Revolving Facility to the New Lender or an Affiliate of the New Lender; and |
| (ii) | in the case of a transfer by an Existing
Lender of any amount of its Swingline Commitment (other than to an Affiliate of that Existing
Lender): |
| (A) | that Existing Lender transfers at the
same time the same amount of its Revolving Facility Commitment applicable to that Swingline
Facility to the New Lender or an Affiliate of the New Lender; or |
| (B) | if that Existing Lender does not have
a Revolving Facility Commitment applicable to that Swingline Facility, its Related Lender
transfers at the same time the same amount of that Related Lender's Revolving Facility Commitment
applicable to that Swingline Facility to the New Lender or an Affiliate of the New Lender. |
| (i) | a Lender assigns or transfers any of
its rights or obligations under the Finance Documents or changes its Facility Office; and |
| (ii) | as a result of circumstances existing
at the date the assignment, transfer or change occurs, an Obligor would be obliged to make
a payment to the New Lender or Lender acting through its new Facility Office under Clause
14 (Tax gross-up
and indemnities) or Clause 15
(Increased costs), |
then the New Lender or Lender
acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender
or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.
| (e) | Each New Lender, by executing the relevant
Transfer Certificate or Assignment Agreement, 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 transfer or |
assignment becomes effective in
accordance with this Agreement and that it is bound by that decision to the same extent as
the Existing Lender would have been had it remained a Lender.
| (f) | Notwithstanding any other term of this
Agreement, each Lender shall ensure that at all times its Overall Commitment in relation
to a Revolving Facility is not less than: |
| (i) | its Swingline Commitment relevant to
that Revolving Facility; or |
| (ii) | if it does not have a Swingline Commitment
relevant to that Revolving Facility, the Swingline Commitment of its Related Lender in relation
to that Revolving Facility. |
| 26.4 | Assignment or transfer fee |
The New Lender shall, on the
date upon which an assignment or transfer takes effect, pay to the Facility Agent (for its own account) a fee of €3,000.
| 26.5 | Limitation of responsibility of Existing
Lenders |
| (a) | Unless expressly agreed to the contrary,
an Existing Lender makes no representation or warranty and assumes no responsibility to a
New Lender for: |
| (i) | the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents or any other documents; |
| (ii) | the financial condition of any Obligor; |
| (iii) | the performance and observance by
any Obligor of its obligations under the Finance Documents or any other documents; or |
| (iv) | the accuracy of any statements (whether
written or oral) made in or in connection with any Finance Document or any other document, |
and any representations or
warranties implied by law are excluded.
| (b) | Each New Lender confirms to the Existing
Lender and the other Finance Parties that it: |
| (i) | has made (and shall continue to make)
its own independent investigation and assessment of the financial condition and affairs of
each Obligor and its related entities in connection with its participation in this Agreement
and has not relied exclusively on any information provided to it by the Existing Lender in
connection with any Finance Document; and |
| (ii) | will continue to make its own independent
appraisal of the creditworthiness of each Obligor and its related entities whilst any amount
is or may be outstanding under the Finance Documents or any Commitment is in force. |
| (c) | Nothing in any Finance Document obliges
an Existing Lender to: |
| (i) | accept a re-transfer or re-assignment
from a New Lender of any of the rights and obligations assigned or transferred under this
Clause 26; or |
| (ii) | support any losses directly or indirectly
incurred by the New Lender by reason of the non-performance by any Obligor of its obligations
under the Finance Documents or otherwise. |
| 26.6 | Procedure for transfer |
| (a) | Subject to the conditions set out in
Clause 26.2 (Company
consent) and Clause 26.3
(Other conditions of assignment or transfer) a transfer is effected in accordance
with paragraph (c) below when the Facility Agent executes an otherwise duly completed
Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Facility
Agent shall, subject to paragraph (b) below, as |
soon as reasonably practicable after
receipt by it of a duly completed Transfer Certificate appearing on its face to comply with
the terms of this Agreement and delivered in accordance with the terms of this Agreement,
execute that Transfer Certificate.
| (b) | The Facility Agent shall only be obliged
to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender
once it is satisfied it has complied with all necessary "know your customer" or
other similar checks under all applicable laws and regulations in relation to the transfer
to such New Lender. |
| (c) | Subject to Clause 26.10
(Pro rata interest settlement), on the Transfer Date: |
| (i) | to the extent that in the Transfer
Certificate the Existing Lender seeks to transfer by novation its rights and obligations
under the Finance Documents, each of the Obligors and the Existing Lender shall be released
from further obligations towards one another under the Finance Documents and their respective
rights against one another under the Finance Documents shall be cancelled (being the "Discharged
Rights and Obligations"); |
| (ii) | each of the Obligors and the New Lender
shall assume obligations towards one another and/or acquire rights against one another which
differ from the Discharged Rights and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender; |
| (iii) | each Agent, each Arranger, the Security
Agent, the New Lender and other Lenders shall acquire the same rights and assume the same
obligations between themselves as they would have acquired and assumed had the New Lender
been an Original Lender with the rights and/or obligations acquired or assumed by it as a
result of the transfer and to that extent each Agent, the Arranger, the Security Agent and
the Existing Lender shall each be released from further obligations to each other under the
Finance Documents; and |
| (iv) | the New Lender shall become a Party
as a "Lender". |
| 26.7 | Procedure for assignment |
| (a) | Subject to the conditions set out in
Clause 26.2 (Company
consent) and Clause 26.3
(Other conditions of assignment or transfer), an assignment may be effected in accordance
with paragraph (c) below when the Facility Agent executes an otherwise duly completed
Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Facility
Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after
receipt by it of a duly completed Assignment Agreement appearing on its face to comply with
the terms of this Agreement and delivered in accordance with the terms of this Agreement,
execute that Assignment Agreement. |
| (b) | The Facility Agent shall only be obliged
to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender
once it is satisfied it has complied with all necessary "know your customer" or
other similar checks under all applicable laws and regulations in relation to the assignment
to such New Lender. |
| (c) | Subject to Clause 26.10
(Pro rata interest settlement), on the Transfer Date: |
| (i) | the Existing Lender will assign absolutely
to the New Lender the rights under the Finance Documents expressed to be the subject of the
assignment in the Assignment Agreement; |
| (ii) | the Existing Lender will be released
by each Obligor and the other Finance Parties from the obligations owed by it (the "Relevant
Obligations") and expressed to be the subject of the release in the Assignment Agreement;
and |
| (iii) | the New Lender shall become a Party
as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations. |
| (d) | Lenders may utilise procedures other
than those set out in this Clause 26.7
to assign their rights under the Finance Documents (but not, without the consent of the relevant
Obligor or unless in accordance with Clause 26.6
(Procedure for transfer), to obtain a release by that Obligor from the obligations
owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New
Lender) provided that they comply with the conditions set out in Clause 26.2
(Company consent) and Clause 26.3
(Other conditions of assignment or transfer). |
| 26.8 | Copy of Transfer Certificate,
Assignment Agreement, Increase Confirmation or Accordion Increase Confirmation to
Company |
The Facility Agent shall,
as soon as reasonably practicable after it has executed a Transfer Certificate, an Assignment Agreement, an Increase Confirmation or
an Accordion Increase Confirmation, send to the Company a copy of that Transfer Certificate, Assignment Agreement, Increase Confirmation
or Accordion Increase Confirmation.
| 26.9 | Security over Lenders' rights |
In addition to the other rights
provided to Lenders under this Clause 26, each Lender may without
consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create Security in or over (whether by
way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without
limitation:
| (a) | any
charge, assignment or other Security to secure obligations to a federal reserve or central
bank; and |
| (b) | any
charge, assignment or other Security granted to any holders (or trustee or representatives
of holders) of obligations owed, or securities issued, by that Lender as security for those
obligations or securities, |
| (c) | except
that no such charge, assignment or Security shall: |
| (i) | release
a Lender from any of its obligations under the Finance Documents or substitute the beneficiary
of the relevant charge, assignment or Security for the Lender as a party to any of the Finance
Documents; or |
| (ii) | require
any payments to be made by an Obligor other than or in excess of, or grant to any person
any more extensive rights than, those required to be made or granted to the relevant Lender
under the Finance Documents. |
| 26.10 | Pro rata interest settlement |
| (a) | If the Facility Agent has notified the
Lenders that it is able to distribute interest payments on a "pro rata basis" to
Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 26.6
(Procedure for transfer) or any assignment pursuant to Clause 26.7
(Procedure for assignment) the Transfer Date of which, in each case, is after the
date of such notification and is not on the last day of an Interest Period): |
| (i) | any interest or fees in respect of
the relevant participation which are expressed to accrue by reference to the lapse of time
shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer
Date ("Accrued Amounts") and shall become due and payable to the Existing
Lender (without further interest accruing on them) on the last day of the current Interest
Period; and |
| (ii) | the rights assigned or transferred
by the Existing Lender will not include the right to the Accrued Amounts, so that, for the
avoidance of doubt: |
| (A) | when the Accrued Amounts become payable,
those Accrued Amounts will be payable to the Existing Lender; and |
| (B) | the amount payable to the New Lender
on that date will be the amount which would, but for the application of this Clause 26.10,
have been payable to it on that date, but after deduction of the Accrued Amounts. |
| (b) | In this Clause 26.10
references to "Interest Period" shall be construed to include a reference to any
other period for accrual of fees. |
| (c) | An Existing Lender which retains the
right to the Accrued Amounts pursuant to this Clause 26.10
but which does not have a Commitment shall be deemed not to be a Lender for the purposes
of ascertaining whether the agreement of any specified group of Lenders has been obtained
to approve any request for a consent, waiver, amendment or other vote of Lenders under the
Finance Documents. |
| 27. | Changes
to the Obligors |
No Obligor may assign any
of its rights or transfer any of its rights or obligations under the Finance Documents.
SECTION 10
FINANCE PARTIES
| 28. | Role
of the Agents, the Security Agent and the Arranger |
| 28.1 | The Agents and the Security Agent |
| (a) | Each of the Arrangers and each Lender
appoints the Facility Agent to act as its agent under and in connection with the Finance
Documents. |
| (b) | Notwithstanding and without limitation
to paragraph (a) above each of the Arrangers and each relevant Lender also appoints: |
| (i) | the €/£ Swingline Agent
to act as its agent under and in connection with the Finance Documents in respect of a Euro
Swingline Loan or a Sterling Swingline Loan; |
| (ii) | the Swiss Francs Swingline Agent to
act as its agent under and in connection with the Finance Documents in respect of a Swiss
Francs Swingline Loan; |
| (iii) | the U.S. Dollar Swingline Agent to
act as its agent under and in connection with the Finance Documents in respect of a U.S.
Dollar Swingline Loan; |
| (iv) | the Danish Krone/Norwegian Krone/Swedish
Krona Swingline Agent to act as its agent under and in connection with the Finance Documents
in respect of the Danish Krone Swingline Loan, Norwegian Krone Swingline Loan or Swedish
Krona Swingline Loan (other than a Swedish Krona Swingline Loan in respect of Swingline Facility
C); and |
| (v) | the Facility C Swingline Agent to act
as its agent under and in connection with the Finance Documents in respect of the Swingline
Facility C Nordic Loans. |
| (c) | Each of the Arrangers, the Lenders and
the Agents appoints the Security Agent to act as security agent under and in connection with
the Finance Documents. |
| (d) | Any reference in this Agreement to "security
agent" means that the Security Agent is acting as security agent and security trustee,
and the Security Agent declares that it holds the Security Property on trust as security
trustee for the Secured Parties on the terms contained in this Agreement. |
| (e) | To the extent that the security trusts
established by this Agreement are not effective to confer the benefit of any Transaction
Security upon any Secured Party: |
| (i) | the Security Agent shall act as security
agent, and not as security trustee, for the relevant Secured Party in respect of that Transaction
Security; and |
| (ii) | paragraph (d) above shall not
apply to that Transaction Security. |
| (f) | This Clause 28.1
shall not affect or limit paragraph (c) of Clause 32.13
(Parallel Debt) with respect to any Security Document. |
| (g) | Each of the Secured Parties authorises
each Agent and the Security Agent to perform the duties, obligations and responsibilities
and to exercise the rights, powers, authorities and discretions specifically given to an
Agent and the Security Agent (as applicable) under or in connection with the Finance Documents
together with any other incidental rights, powers, authorities and discretions. |
| 28.2 | Enforcement through Security Agent
only |
The Secured Parties shall
not have any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any right, power, authority
or discretion arising under the Security Documents except through the Security Agent.
| (a) | Each of the Agents shall: |
| (i) | unless a contrary indication appears
in a Finance Document, exercise or refrain from exercising any right, power, authority or
discretion vested in it as an Agent or the Security Agent (as applicable) in accordance with
any instructions given to it by: |
| (A) | all Lenders if the relevant Finance
Document stipulates the matter is an all Lender decision; and |
| (B) | in all other cases, the Majority Lenders
or, if the relevant Finance Document stipulates the matter is a decision for any other Finance
Party or group of Finance Parties, from that Finance Party or group of Finance Parties; and |
| (ii) | not be liable for any act (or omission)
if it acts (or refrains from acting) in accordance with paragraph (i) above (or, if
this Agreement stipulates the matter is a decision for any other Finance Party or group of
Finance Parties, from that Finance Party or group of Finance Parties). |
| (b) | Notwithstanding any provision of the
Finance Documents, the Security Agent shall (i) exercise any right, power, authority
or discretion vested in it as Security Agent in accordance with any instructions given to
it by the Facility Agent (whom, in turn, shall act on the instructions of the Lenders or,
as the case may be, the Majority Lenders) (or, if so instructed by the Facility Agent, refrain
from exercising any right, power, authority or discretion vested in it as Security Agent)
and (ii) not be liable for any act (or omission) if it acts (or refrains from taking
any action) in accordance with an instruction of the Facility Agent (whom, in turn, shall
act on the instructions of the Lenders or, as the case may be, the Majority Lenders). |
| (c) | Each of the Agents and the Security Agent
shall be entitled to request instructions, or clarification of any instruction, from the
Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision
for any other Finance Party or group of Finance Parties, from that Finance Party or group
of Finance Parties) or, in the case of the Security Agent, from the Facility Agent as to
whether, and in what manner, it should exercise or refrain from exercising any right, power,
authority or discretion and any Agent or the Security Agent (as applicable) may refrain from
acting unless and until it receives any such instructions or that clarification. |
| (d) | Save in the case of decisions stipulated
to be a matter for any other Finance Party or group of Finance Parties under the relevant
Finance Document and unless a contrary indication appears in a Finance Document, any instructions
given to any Agent or the Security Agent (as applicable) by the Majority Lenders or, in the
case of the Security Agent, from the Facility Agent shall override any conflicting instructions
given by any other Parties and will be binding on all Finance Parties. |
| (e) | Paragraph (a) or (b) above
shall not apply: |
| (i) | where a contrary indication appears
in a Finance Document; |
| (ii) | where a Finance Document requires
an Agent or the Security Agent to act in a specified manner or to take a specified action; |
| (iii) | in respect of any provision which
protects an Agent's or the Security Agent's own position in its personal capacity as opposed
to its role of Agent or Security Agent for the relevant Finance Parties or Secured Parties
(as applicable), including, without limitation, Clause 28.6
(No fiduciary duties) to Clause 28.11
(Exclusion of liability), Clause 28.16
(Confidentiality) to Clause 28.22
(Custodians and nominees) and Clause 28.26
(Acceptance of title) to Clause 28.29
(Disapplication of Trustee Acts); |
| (iv) | in respect of the exercise of the
Security Agent's discretion to exercise a right, power or authority under any of: |
| (A) | Clause 29.1
(Order of application); |
| (B) | Clause 29.2
(Prospective liabilities); and |
| (C) | Clause 29.5
(Permitted Deductions). |
| (f) | If giving effect to instructions given
by the Majority Lenders (or in the case of the Security Agent given by the Facility Agent)
would (in an Agent's or (as applicable) the Security Agent's opinion) have an effect equivalent
to an amendment or waiver referred to in Clause 38
(Amendments and waivers), an Agent or (as applicable) the Security Agent shall not
act in accordance with those instructions unless consent to it so acting is obtained from
each Party (other than an Agent or the Security Agent) whose consent would have been required
in respect of that amendment or waiver. |
| (g) | In exercising any discretion to exercise
a right, power or authority under the Finance Documents where either: |
| (i) | it has not received any instructions
as to the exercise of that discretion; or |
| (ii) | the exercise of that discretion is
subject to paragraph (e)(iv) above, |
an Agent or the Security Agent
shall be entitled (but not obliged) to do so having regard to the interests of (in the case of an Agent) all the Finance Parties and
(in the case of the Security Agent) all the Secured Parties.
| (h) | An Agent or the Security Agent (as applicable)
may refrain from acting in accordance with any instructions of any Finance Party or group
of Finance Parties until it has received any indemnification and/or security that it may
in its discretion require (which may be greater in extent than that contained in the Finance
Documents and which may include payment in advance) for any cost, loss or liability which
it may incur in complying with those instructions. |
| (i) | Without prejudice to the remainder of
this Clause 28.3,
in the absence of instructions, each of the Agents and the Security Agent may act (or refrain
from acting) as it considers to be in the best interest of (in the case of the Facility Agent)
the Finance Parties and (in the case of the Security Agent) the Secured Parties, provided
that the Security Agent shall not be obliged to act (or refrain from taking action) unless
and until it shall have been instructed so to do by the Facility Agent. |
| (j) | None of the Agents nor the Security Agent
is authorised to act on behalf of a Finance Party (without first obtaining that Finance Party's
consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph
(j) shall not apply to any legal or arbitration proceeding relating to the perfection,
preservation or protection of rights under the Security Documents or enforcement of the Transaction
Security or Security Documents. |
| 28.4 | Duties of the Agents and the Security
Agent |
| (a) | The duties of each Agent and the Security
Agent under the Finance Documents are solely mechanical and administrative in nature. |
| (b) | Subject to paragraph (c) below,
each of the Agents and the Security Agent shall promptly forward to a Party the original
or a copy of any document which is delivered to that Agent or the Security Agent (as applicable)
for that Party by any other Party. |
| (c) | Without prejudice to Clause 26.8
(Copy of Transfer Certificate, Assignment Agreement, Increase Confirmation
or Accordion Increase Confirmation to Company), paragraph (b) above shall not apply
to any Transfer Certificate, any Assignment Agreement, any Increase Confirmation or any Accordion
Increase Confirmation. |
| (d) | Except where a Finance Document specifically
provides otherwise, none of the Agents nor the Security Agent is obliged to review or check
the adequacy, accuracy or completeness of any document it forwards to another Party. |
| (e) | If an Agent or the Security Agent receives
notice from a Party referring to any Finance Document, describing a Default and stating that
the circumstance described is a Default, it shall promptly notify the other Finance Parties. |
| (f) | If an Agent is aware of the non-payment
of any principal, interest, commitment fee or other fee payable to a Finance Party (other
than an Agent, an Arranger or the Security Agent) under this Agreement, it shall promptly
notify the other Finance Parties. |
| (g) | Each Agent shall provide to the Company
within five Business Days of a request by the Company (but no more frequently than once per
calendar month), a list (which may be in electronic form) setting out the names of the Lenders
as at the date of that request, their respective Commitments, the address (and the department
or officer, if any, for whose attention any communication is to be made) of each Lender for
any communication to be made or document to be delivered under or in connection with the
Finance Documents, the electronic mail address and/or any other information required to enable
the transmission of information by electronic mail or other electronic means to and by each
Lender to whom any communication under or in connection with the Finance Documents may be
made by that means and the account details of each Lender for any payment to be distributed
by an Agent to that Lender under the Finance Documents. |
| (h) | Each of the Agents and the Security Agent
shall have only those duties, obligations and responsibilities expressly specified in the
Finance Documents to which it is expressed to be a party (and no others shall be implied). |
Except as specifically provided
in the Finance Documents, no Arranger has obligations of any kind to any other Party under or in connection with any Finance Document.
| (a) | Nothing in any Finance Document constitutes: |
| (i) | an Agent or an Arranger as a trustee
or fiduciary of any other person; or |
| (ii) | the Security Agent as an agent, trustee
or fiduciary of any Obligor. |
| (b) | None of the Agents, the Security Agent
nor the Arrangers shall be bound to account to any other Finance Party or (in the case of
the Security Agent) any Secured Party for any sum or the profit element of any sum received
by it for its own account. |
| 28.7 | Business with the Group |
Each Agent, the Security Agent
and Arranger may accept deposits from, lend money to and generally engage in any kind of banking or other business with any Obligor or
Affiliate of an Obligor.
| 28.8 | Rights and discretions |
| (a) | Each of the Agents and the Security Agent
may: |
| (i) | rely on any representation, communication,
notice or document believed by it to be genuine, correct and appropriately authorised; |
| (A) | any instructions received by it from
the Majority Lenders, any Finance Parties or any group of Finance Parties (or in the case
of the Security Agent, received by it from the Facility Agent) are duly given in accordance
with the terms of the Finance Documents; and |
| (B) | unless it has received notice of revocation,
that those instructions have not been revoked; and |
| (iii) | call for and rely on a certificate
from any person: |
| (A) | as to any matter of fact or circumstance
which might reasonably be expected to be within the knowledge of that person; or |
| (B) | to the effect that such person approves
of any particular dealing, transaction, step, action or thing, |
as sufficient evidence that
that is the case and, in the case of paragraph (A) above, may assume the truth and accuracy of that certificate.
| (b) | Each of the Agents and the Security Agent
may assume (unless it has received notice to the contrary in its capacity as agent for the
Finance Parties or security agent for the Secured Parties) that: |
| (i) | no Default has occurred (unless, in
the case of an Agent, it has actual knowledge of a Default arising under Clause 25.1
(Non-payment)); |
| (ii) | any right, power, authority or discretion
vested in any Party or any group of Finance Parties has not been exercised; and |
| (iii) | any notice or request made by the
Company (other than a Utilisation Request) is made on behalf of and with the consent and
knowledge of all the Obligors. |
| (c) | Each of the Agents and the Security Agent
may engage and pay for the advice or services of any lawyers, accountants, tax advisers,
surveyors or other professional advisers or experts. |
| (d) | Without prejudice to the generality of
paragraph (c) above or paragraph (e) below, each of the Agents and the Security
Agent may at any time engage and pay for the services of any lawyers to act as independent
counsel to an Agent or the Security Agent (as applicable), (and so separate from any lawyers
instructed by the Lenders) if an Agent or the Security Agent (as applicable) in its reasonable
opinion deems this to be desirable. |
| (e) | Each of the Agents and the Security Agent
may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or
other professional advisers or experts (whether obtained by any Agent or by the Security
Agent or by any other Party and whether or not liability in relation thereto is limited by
reference to a monetary cap, methodology or otherwise) and shall not be liable for any damages,
costs or losses to any person, any diminution in value or any liability whatsoever arising
as a result of its so relying. |
| (f) | Each of the Agents and the Security Agent
may act in relation to the Finance Documents and the Security Property through its officers,
employees and agents and shall not: |
| (i) | be liable for any error of judgment
made by any such person; or |
| (ii) | be bound to supervise, or be in any
way responsible for any loss incurred by reason of misconduct, omission or default on the
part of, any such person, |
unless such error or such
loss was directly caused by an Agent's or the Security Agent's (as applicable) gross negligence or wilful misconduct.
| (g) | Unless a Finance Document expressly provides
otherwise each of the Agents and the Security Agent may disclose to any other Party any information
it reasonably believes it has received as agent or security agent under the Finance Documents. |
| (h) | Without prejudice to the generality of
paragraph (g) above,
each Agent: |
| (ii) | on the written request of the Company
or the Majority Lenders shall, as soon as reasonably practicable, disclose |
the identity of a Defaulting
Lender to the Company and to the other Finance Parties.
| (i) | Notwithstanding any other provision of
any Finance Document to the contrary, none of the Agents, the Security Agent nor the Arranger
is obliged to do or omit to do anything if it would, or might in its reasonable opinion,
constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
The Security Agent may refrain (without liability) from doing anything that would or might
in its opinion constitute a breach of, or be contrary to, any law of any state or jurisdiction
(including, but not limited to, The Netherlands, the United States of America or any jurisdiction
forming a part of it, the European Union and England and Wales) or any directive or regulation
of any agency of any such state or jurisdiction and may without liability do anything which
is, in its opinion, necessary to comply with any such law, directive or regulation. |
| (j) | Notwithstanding any provision of any
Finance Document to the contrary, none of the Agents nor the Security Agent is obliged to
expend or risk its own funds or otherwise incur any financial liability in the performance
of its duties, obligations or responsibilities or the exercise of any right, power, authority
or discretion if it has grounds for believing the repayment of such funds or adequate indemnity
against, or security for, such risk or liability is not reasonably assured to it. |
| 28.9 | Responsibility for documentation |
None of the Agents, the Security
Agent nor any Arranger is responsible or liable for:
| (a) | the
adequacy, accuracy or completeness of any information (whether oral or written) supplied
by an Agent, the Security Agent, an Arranger, an Obligor or any other person in or in connection
with any Finance Document or the Information Memorandum or the transactions contemplated
in the Finance Documents or any other agreement, arrangement or document entered into, made
or executed in anticipation of, under or in connection with any Finance Document; or |
| (b) | the
legality, validity, effectiveness, adequacy or enforceability of any Finance Document or
the Security Property or any other agreement, arrangement or document entered into, made
or executed in anticipation of, under or in connection with any Finance Document or the Security
Property; |
| (c) | checking,
enquiring or investigating the adequacy, accuracy or completeness of any communication delivered
to it under any of the Finance Documents, any legal or other opinions, reports, valuations,
certificates, appraisals or other documents delivered or made |
or required to be delivered
or made at any time in connection with any of the Finance Documents, any security to be constituted
thereby or any other report or other document, statement or information circulated, delivered
or made, whether orally or otherwise and whether before, on or after the date thereof; or
| (d) | any
determination as to whether any information provided or to be provided to any Secured Party
is non-public information the use of which may be regulated or prohibited by applicable law
or regulation relating to insider dealing or otherwise. |
None of the Agents nor the
Security Agent shall be bound to enquire:
| (a) | whether
or not any Default has occurred; |
| (b) | as
to the performance, default or any breach by any Party of its obligations under any Finance
Document; or |
| (c) | whether
any other event specified in any Finance Document has occurred, |
and each Agent and the Security
Agent shall be entitled to assume, unless it has received express notice to the contrary, that each other Party is complying with its
obligations under the Finance Documents.
| 28.11 | Exclusion of liability |
| (a) | Without limiting paragraph (b) below
(and without prejudice to any other provision of any Finance Document excluding or limiting
the liability of an Agent, the Security Agent or any Receiver or Delegate), none of the Agents,
the Security Agent nor any Receiver or Delegate will be liable (including, without limitation,
for negligence or any other category of liability whatsoever) for: |
| (i) | any damages, costs or losses to any
person, any diminution in value, or any liability whatsoever arising as a result of taking
or not taking any action under or in connection with any Finance Document or the Security
Property, unless directly caused by its gross negligence or wilful misconduct; |
| (ii) | exercising, or not exercising, any
right, power, authority or discretion given to it by, or in connection with, any Finance
Document, the Security Property or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with, any Finance Document or
the Security Property; |
| (iii) | any shortfall which arises on the
enforcement or realisation of the Security Property; or |
| (iv) | without prejudice to the generality
of paragraphs (i) to (iii) above, any damages, costs or losses to any person, any
diminution in value or any liability whatsoever arising as a result of: |
| (A) | any act, event or circumstance not
reasonably within its control; or |
| (B) | the general risks of investment in,
or the holding of assets in, any jurisdiction, |
including (in each case and
without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation
or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution
or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third
party transport, telecommunications, computer
services or systems; natural disasters or acts of God; war, terrorism, insurrection or
revolution; or strikes or industrial action.
| (b) | No Party (other than an Agent, the Security
Agent, that Receiver or that Delegate (as applicable)) may take any proceedings against any
officer, employee or agent of an Agent, the Security Agent, a Receiver or a Delegate in respect
of any claim it might have against the Agent, the Security Agent, a Receiver or a Delegate
or in respect of any act or omission of any kind by that officer, employee or agent in relation
to any Finance Document or any Security Property and any officer, employee or agent of an
Agent, the Security Agent, a Receiver or a Delegate may rely on this Clause 28.11
subject to Clause 1.4
(Third party rights) and the provisions of the Third Parties Act. |
| (c) | None of the Agents nor the Security Agent
will be liable for any delay (or any related consequences) in crediting an account with an
amount required under the Finance Documents to be paid by an Agent or the Security Agent
(as applicable) if an Agent or the Security Agent (as applicable) has taken all necessary
steps as soon as reasonably practicable to comply with the regulations or operating procedures
of any recognised clearing or settlement system used by an Agent or the Security Agent (as
applicable) for that purpose. |
| (d) | Nothing in this Agreement shall oblige
an Agent, the Security Agent or an Arranger to carry out: |
| (i) | any "know your customer"
or other checks in relation to any person; or |
| (ii) | any check on the extent to which any
transaction contemplated by this Agreement might be unlawful for any Finance Party or for
any Affiliate of any Finance Party, |
on behalf of any Finance Party
and each Finance Party confirms to each Agent, the Security Agent and each Arranger that it is solely responsible for any such checks
it is required to carry out and that it may not rely on any statement in relation to such checks made by an Agent, the Security Agent
or an Arranger.
| (e) | Without prejudice to any provision of
any Finance Document excluding or limiting the liability of an Agent, the Security Agent,
any Receiver or Delegate, any liability of an Agent, the Security Agent, any Receiver or
Delegate arising under or in connection with any Finance Document or the Security Property
shall be limited to the amount of actual loss which has been finally judicially determined
to have been suffered (as determined by reference to the date of default of an Agent, the
Security Agent, Receiver or Delegate or, if later, the date on which the loss arises as a
result of such default) but without reference to any special conditions or circumstances
known to an Agent, the Security Agent, any Receiver or Delegate at any time which increase
the amount of that loss. In no event shall an Agent, the Security Agent, any Receiver or
Delegate be liable for any loss of profits, goodwill, reputation, business opportunity or
anticipated saving, or for special, punitive, indirect or consequential damages, whether
or not an Agent, the Security Agent, the Receiver or Delegate has been advised of the possibility
of such loss or damages. |
| 28.12 | Lenders' indemnity to the Facility
Agent |
Each Lender shall (in proportion
to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior
to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability,
including without limitation, for negligence or any other category of liability whatsoever incurred by the Facility Agent (otherwise
than by reason of the Facility Agent’s gross negligence or wilful misconduct) (or in the case of any cost, loss or liability pursuant
to Clause 32.11 (Disruption to payment systems etc.)
notwithstanding the Facility Agent's negligence, gross negligence or any other category of liability whatsoever but not including any
claim based on the fraud of the Facility
Agent) in acting as Facility Agent under the Finance Documents
(unless the Facility Agent has been reimbursed by an Obligor pursuant to a Finance Document).
| 28.13 | Lenders' indemnity to the Security
Agent |
Each Lender shall (in proportion
to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior
to their reduction to zero) indemnify the Security Agent and every Receiver and every Delegate, within three Business Days of demand,
against any cost, loss or liability, including, without limitation, for negligence or any other category of liability whatsoever incurred
by any of them (otherwise than by reason of that Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct) in
acting as Security Agent, Receiver or Delegate under the Finance Documents (unless the Security Agent, the Receiver or the Delegate has
been reimbursed by an Obligor pursuant to a Finance Document).
| 28.14 | Resignation of the Agents and the
Security Agent |
| (a) | Each of the Agents and the Security Agent
may resign (without giving any reason) and appoint one of its Affiliates (acting through
an office in a financial centre in the United States in the same time zone as New York in
the case of the U.S. Dollar Swingline Agent) as successor by giving notice to the other Finance
Parties and the Company. |
| (b) | Alternatively, an Agent or the Security
Agent may resign (without giving any reason) by giving 30 days' notice to the other Finance
Parties and the Company, in which case the Majority Lenders (after consultation with the
other Finance Parties and the Company) may appoint a successor Agent or Security Agent (as
applicable). |
| (c) | If the Majority Lenders have not appointed
a successor Agent or Security Agent in accordance with paragraph (b) above within 20
days after notice of resignation has been given, the retiring Agent or Security Agent (as
applicable) (after consultation with the other Finance Parties and the Company) may appoint
a successor Agent or Security Agent (as applicable) (acting through an office in the United
Kingdom or a financial centre in the United States in the same time zone as New York in the
case of the U.S. Dollar Swingline Agent). |
| (d) | If an Agent wishes to resign because
(acting reasonably) it has concluded that it is no longer appropriate for it to remain as
agent and that Agent is entitled to appoint a successor Agent under paragraph (c) above,
an Agent may (if it concludes (acting reasonably) that it is necessary to do so in order
to persuade the proposed successor Agent to become a party to this Agreement as Agent) agree
with the proposed successor Agent amendments to this Clause 28
and any other term of this Agreement dealing with the rights or obligations of that Agent
consistent with then current market practice for the appointment and protection of corporate
trustees together with any reasonable amendments to the agency fee payable under this Agreement
which are consistent with the successor Agent's normal fee rates and those amendments will
bind the Parties. |
| (e) | The retiring Agent or Security Agent
(as applicable) shall, at the Company’s cost, make available to the successor Agent
or Security Agent (as applicable) such documents and records and provide such assistance
as the successor Agent or Security Agent may reasonably request for the purposes of performing
its functions as Agent or Security Agent (as applicable) under the Finance Documents. |
| (f) | The resignation notice of an Agent or
Security Agent (as applicable) shall only take effect upon: |
| (i) | the appointment of a successor; and |
| (ii) | (in the case of the Security Agent),
the transfer of the Security Property to that successor. |
| (g) | Upon the appointment of a successor,
the retiring Agent or Security Agent (as applicable) shall be discharged from any further
obligation in respect of the Finance Documents (other than its obligations under paragraph
(b) of Clause 28.27
(Winding up of security agent arrangements) and (e) above) but shall remain entitled
to the benefit of Clause 16.3
(Indemnity to each Agent), Clause 16.4
(Indemnity to the Security Agent), Clause 18 (Costs and expenses) and this
Clause 28 (and
any agency fees for the account of the retiring Agent or Security Agent (as applicable) shall
cease to accrue from (and shall be payable on) that date). Its successor and each of the
other Parties shall have the same rights and obligations amongst themselves as they would
have had if such successor had been an original Party. |
| (h) | An Agent shall resign in accordance with
paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours
to appoint a successor Agent pursuant to paragraph (c) above) if, on or after the date
which is three months before the earliest FATCA Application Date relating to any payment
to that Agent under the Finance Documents, either: |
| (i) | that Agent fails to respond to a request
under Clause 14.8
(FATCA information) and a Lender reasonably believes that that Agent will not be (or
will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
| (ii) | the information supplied by that Agent
pursuant to Clause 14.8
(FATCA information) indicates that that Agent will not be (or will have ceased to
be) a FATCA Exempt Party on or after that FATCA Application Date; or |
| (iii) | that Agent notifies the Company and
the Lenders that it will not be (or will have ceased to be) a FATCA Exempt Party on or after
that FATCA Application Date, |
and (in each case) a Lender
reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if that Agent were a FATCA Exempt
Party, and that Lender, by notice to that Agent, requires it to resign.
| 28.15 | Replacement of an Agent |
| (a) | After consultation with the Company,
the Majority Lenders may, by giving 30 days' notice to an Agent (or, at any time an Agent
is an Impaired Agent, by giving any shorter notice determined by the Majority Lenders), replace
that Agent by appointing a successor Agent (acting through an office in a financial centre
in the United States in the same time zone as New York in the case of the U.S. Dollar Swingline
Agent). |
| (b) | The retiring Agent shall (at its own
cost if it is an Impaired Agent and otherwise at the expense of the Lenders) make available
to the successor Agent such documents and records and provide such assistance as the successor
Agent may reasonably request for the purposes of performing its functions as Agent under
the Finance Documents. |
| (c) | The appointment of the successor Agent
shall take effect on the date specified in the notice from the Majority Lenders to the retiring
Agent. As from this date, the retiring Agent shall be discharged from any further obligation
in respect of the Finance Documents (other than its obligations under paragraph (b) above)
but shall remain entitled to the benefit of Clause 16.3
(Indemnity to each Agent) and this Clause 28
(and any agency fees for the account of the retiring Agent shall cease to accrue from (and
shall be payable on) that date). |
| (d) | Any successor Agent and each of the other
Parties shall have the same rights and obligations amongst themselves as they would have
had if such successor had been an original Party. |
| (a) | In acting as agent or security agent
for the Finance Parties or Secured Parties, each Agent or Security Agent (as applicable)
shall be regarded as acting through its agency division which shall be treated as a separate
entity from any other of its divisions or departments. |
| (b) | If information is received by another
division or department of an Agent or Security Agent, it may be treated as confidential to
that division or department and that Agent or Security Agent (as applicable) shall not be
deemed to have notice of it. |
| 28.17 | Relationship with the other Finance
Parties |
| (a) | Subject to Clause 26.10
(Pro rata interest settlement), each Agent may treat the person shown in its records
as Lender at the opening of business (in the place of that Agent's principal office as notified
to the Finance Parties from time to time) as the Lender acting through its Facility Office: |
| (i) | entitled to or liable for any payment
due under any Finance Document on that day; and |
| (ii) | entitled to receive and act upon any
notice, request, document or communication or make any decision or determination under any
Finance Document made or delivered on that day, |
unless it has received not
less than five Business Days' prior notice from that Lender to the contrary in accordance with the terms of this Agreement.
| (b) | Any Lender may by notice to each Agent
appoint a person to receive on its behalf all notices, communications, information and documents
to be made or despatched to that Lender under the Finance Documents. Such notice shall contain
the address and (where communication by electronic mail or other electronic means is permitted
under Clause 34.6
(Electronic communication)) electronic mail address and/or any other information required
to enable the transmission of information by that means (and, in each case, the department
or officer, if any, for whose attention communication is to be made) and be treated as a
notification of a substitute address, electronic mail address (or such other information),
department and officer by that Lender for the purposes of Clause 34.2
(Addresses) and paragraph (a)(ii) of Clause 34.6
(Electronic communication) and each Agent shall be entitled to treat such person as
the person entitled to receive all such notices, communications, information and documents
as though that person were that Lender. |
| (c) | Each Secured Party shall supply the Security
Agent with any information that the Security Agent may reasonably specify as being necessary
or desirable to enable the Security Agent to perform its functions as Security Agent. |
| 28.18 | Credit appraisal by the Lenders |
Without affecting the responsibility
of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to each
Agent, the Security Agent and each Arranger that it has been, and will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection with any Finance Document, including, but not limited to:
| (a) | the
financial condition, status and nature of each member of the Group; |
| (b) | the
legality, validity, effectiveness, adequacy or enforceability of any Finance Document, the
Security Property and any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance Document or the Security
Property; |
| (c) | whether
that Lender has recourse, and the nature and extent of that recourse, against any Party or
any of its respective assets under or in connection with any Finance Document, the Security
Property, the transactions contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in anticipation of, under or in connection
with any Finance Document or the Security Property; |
| (d) | the
adequacy, accuracy or completeness of the Information Memorandum and any other information
provided by an Agent, the Security Agent, any Party or by any other person under or in connection
with any Finance Document, the transactions contemplated by any Finance Document or any other
agreement, arrangement or document entered into, made or executed in anticipation of, under
or in connection with any Finance Document; and |
| (e) | the
right or title of any person in or to, or the value or sufficiency of any part of, the Security
Assets, the priority of any of the Transaction Security or the existence of any Security
affecting the Security Assets. |
| 28.19 | Deduction from amounts payable by
an Agents or Security Agent |
If any Party owes an amount
to an Agent or the Security Agent under the Finance Documents, that Agent or the Security Agent (as the case may be) may, after giving
notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which that Agent or the Security Agent
(as the case may be) would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction
of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.
| 28.20 | Reliance and engagement letters |
Each Finance Party and Secured
Party confirms that each of the Arrangers, the Agents and the Security Agent has authority to accept on its behalf (and ratifies the
acceptance on its behalf of any letters or reports already accepted by an Arranger, an Agent or the Security Agent) the terms of any
reliance letter or engagement letters relating to any reports or letters provided by accountants, auditors or providers of due diligence
reports in connection with the Finance Documents or the transactions contemplated in the Finance Documents and to bind it in respect
of those reports or letters and to sign such letters on its behalf and further confirms that it accepts the terms and qualifications
set out in such letters.
| 28.21 | No responsibility to perfect Transaction
Security |
The Security Agent shall not
be liable for any failure to:
| (a) | require
the deposit with it of any deed or document certifying, representing or constituting the
title of any Obligor to any of the Security Assets; |
| (b) | obtain
any licence, consent or other authority for the execution, delivery, legality, validity,
enforceability or admissibility in evidence of any Finance Document or the Transaction Security; |
| (c) | register,
file or record or otherwise protect any of the Transaction Security (or the priority of any
of the Transaction Security) under any law or regulation or to give notice to any person
of the execution of any Finance Document or of the Transaction Security; |
| (d) | take,
or to require any Obligor to take, any step to perfect its title to any of the Security Assets
or to render the Transaction Security effective or to secure the creation of any ancillary
Security under any law or regulation; or |
| (e) | require
any further assurance in relation to any Security Document. |
| 28.22 | Custodians and nominees |
The Security Agent may appoint
and pay any person to act as a custodian or nominee on any terms in relation to any Security Property as the Security Agent may determine,
including for the purpose of depositing with a custodian this Agreement or any document relating to the Security Property and the Security
Agent shall not be responsible for any loss, liability, expense, demand, cost, claim or proceedings incurred by reason of the misconduct,
omission or default on the part of any person appointed by it under this Agreement or be bound to supervise the proceedings or acts of
any person.
| 28.23 | Insurance by Security Agent |
The Security Agent shall not
be obliged:
| (a) | to
insure any of the Security Assets; |
| (b) | to
require any other person to maintain any insurance; or |
| (c) | to
verify any obligation to arrange or maintain insurance contained in any Finance Document, |
and the Security Agent shall
not be liable for any damages, costs or losses to any person as a result of the lack of, or inadequacy of, any such insurance and nor
shall the Security Agent be liable for paying any premiums in respect of any insurance policy. Where the Security Agent is to be named
on any insurance policy, it should be named as a loss payee.
| 28.24 | Delegation by the Security Agent |
| (a) | Each of the Security Agent, any Receiver
and any Delegate may, at any time, delegate by power of attorney or otherwise to any person
for any period, all or any right, power, authority or discretion vested in it in its capacity
as such. |
| (b) | That delegation may be made upon any
terms and conditions (including the power to sub-delegate) subject to any restrictions that
the Security Agent, that Receiver or that Delegate (as the case may be) may, in its discretion,
think fit in the interests of the Secured Parties. |
| (c) | No Security Agent, Receiver or Delegate
shall be bound to supervise, or be in any way responsible for any damages, costs or losses
incurred by reason of any misconduct, omission or default on the part of any such delegate
or sub-delegate. |
| 28.25 | Additional Security Agents |
| (a) | The Security Agent may at any time appoint
(and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly
with it: |
| (i) | if it considers that appointment to
be in the interests of the Secured Parties; |
| (ii) | for the purposes of conforming to
any legal requirement, restriction or condition which the Security Agent deems to be relevant;
or |
| (iii) | for obtaining or enforcing any judgment
in any jurisdiction, |
and the Security Agent shall
give prior notice to the Company and the Secured Parties of that appointment.
| (b) | Any person so appointed shall have the
rights, powers, authorities and discretions (not exceeding those given to the Security Agent
under or in connection with the Finance Documents) and the duties, obligations and responsibilities
that are given or imposed by the instrument of appointment. |
| (c) | The remuneration that the Security Agent
may pay to that person, and any costs and expenses incurred by that person in performing
its functions pursuant to that appointment, shall, for the purposes of this Agreement, be
treated as costs and expenses incurred by the Security Agent. |
The Security Agent shall be
entitled to accept without enquiry, and shall not be obliged to investigate, any right and title that any Obligor may have to any of
the Security Assets and shall not be liable for, or bound to require any Obligor to remedy, any defect in its right or title. The Security
Agent shall not be required to be or to become the registered holder of title of any Security Asset prior to enforcement of the Security
Property.
| 28.27 | Winding up of security agent arrangements |
If the Security Agent, with
the approval of the Facility Agent, determines that:
| (a) | all
of the Secured Liabilities and all other obligations secured by the Security Documents have
been fully and finally discharged; and |
| (b) | no
Secured Party is under any commitment, obligation or liability (actual or contingent) to
make advances or provide other financial accommodation to any Obligor pursuant to the Finance
Documents, |
then:
| (i) | the
security agent arrangements and the trusts set out in this Agreement shall be wound up and
the Security Agent shall release, without recourse or warranty, all of the Transaction Security
and the rights of the Security Agent under each of the Security Documents; and |
| (ii) | any
Security Agent which has resigned pursuant to Clause 28.14
(Resignation of the Agents and the Security Agent) shall release, without recourse
or warranty, all of its rights under each Security Document. |
| 28.28 | Powers supplemental to Trustee Acts |
The rights, powers, authorities
and discretions given to the Security Agent under or in connection with the Finance Documents shall be supplemental to the Trustee Act
1925 and the Trustee Act 2000 and in addition to any which may be vested in the Security Agent by law or regulation or otherwise.
| 28.29 | Disapplication of Trustee Acts |
Section 1 of the Trustee
Act 2000 shall not apply to the duties of the Security Agent in relation to the trusts constituted by this Agreement. Where there are
any inconsistencies between the Trustee Act 1925 or the Trustee Act 2000 and the provisions of this Agreement, the provisions of this
Agreement shall, to the extent permitted by law and regulation, prevail and, in the case of any inconsistency with the Trustee Act 2000,
the provisions of this Agreement shall constitute a restriction or exclusion for the purposes of that Act.
| 28.30 | Appointment of agents |
The Security Agent may, instead
of acting personally, employ any agent on any terms, to transact or conduct, or concur in transacting or conducting, any business and
to do or concur in doing all acts required to be done by the Security Agent (including the receipt and payment of money) and the Security
Agent shall not be responsible for any misconduct on the part of any person approved by it hereunder or be bound to supervise the proceedings
or acts of any such person appointed with reasonable care hereunder.
| 28.31 | Deductions or withholding |
The Security Agent is not
responsible for making any deductions or withholding in respect of Taxes or other governmental charges in respect of any amounts paid
by or on behalf of the Security Agent from the proceeds of any enforcement or realisation of the Security Property.
| 28.32 | Amounts paid in error |
| (a) | If
the Facility Agent pays an amount to another Party and the Facility Agent notifies that Party
that that payment was an Erroneous Payment then the Party to whom that amount was paid by
the Facility Agent shall on demand refund the same to the Facility Agent together with interest
on that amount from the date of payment to the date of receipt by the Facility Agent, calculated
by the Facility Agent to reflect its cost of funds. |
| (b) | The
rights and remedies of the Facility Agent (whether arising under this Clause 28.32 or otherwise)
which relate to an Erroneous Payment will not be affected by any act, omission, matter or
thing which, but for this paragraph (b), would reduce, release or prejudice any such right
or remedy (whether or not known by the Facility Agent or any other Party). |
| (c) | All
payments to be made by a Party to the Facility Agent (whether made pursuant to this Clause
28.32 or otherwise) which relate to an Erroneous Payment shall be calculated and be made
without (and free and clear of any deduction for) set-off or counterclaim. |
| 29. | Application
of Proceeds |
Subject to Clause 29.2
(Prospective liabilities), all amounts from time to time received or recovered by the Security Agent pursuant to the terms of
any Finance Document or in connection with the realisation or enforcement of all or any part of the Transaction Security (for the purposes
of this Clause 29, the "Recoveries") shall
be held by the Security Agent for application at any time as the Security Agent (in its discretion) sees fit, to the extent permitted
by applicable law (and subject to the provisions of this Clause 29),
in the following order:
| (a) | in discharging any sums owing to the
Security Agent (other than pursuant to Clause 32.13 (Parallel Debt), any Receiver
or any Delegate; |
| (b) | in discharging all costs and expenses
incurred by each Agent or any Secured Party in connection with any realisation or enforcement
of the Transaction Security taken in accordance with the terms of this Agreement; |
| (c) | in payment or distribution to an Agent
for application in accordance with the order of payments set out in Clause 32.6
(Partial payments); |
| (d) | if none of the Obligors is under any
further actual or contingent liability under any Finance Document, in payment or distribution
to any person to whom the Security Agent is obliged to pay or distribute in priority to any
Obligor; and |
| (e) | the balance, if any, in payment or
distribution to the relevant Obligor. |
| 29.2 | Prospective liabilities |
Following acceleration, the
Security Agent may, in its discretion, hold any amount of the Recoveries in an interest-bearing suspense or impersonal account(s) in
the name of the Security Agent with such financial institution (including itself) and for so long as the Security Agent shall think fit
(the interest being credited to the relevant account) for later application under Clause 29.1
(Order of application) in respect of:
| (a) | any
sum to the Security Agent, any Receiver or any Delegate; and |
| (b) | any
part of the Secured Liabilities, |
that the Security Agent reasonably
considers, in each case, might become due or owing at any time in the future.
| 29.3 | Investment of proceeds |
Prior to the application of
the proceeds of the Recoveries in accordance with Clause 29.1
(Order of application), the Security Agent may, in its discretion, hold all or part of those proceeds in an interest-bearing suspense
or impersonal account(s) in the name of the Security Agent with such financial institution (including itself) and for so long as
the Security Agent shall think fit (the interest being credited to the relevant account) pending the application from time to time of
those moneys in the Security Agent's discretion in accordance with the provisions of this Clause 29.3.
| (a) | For the purpose of, or pending the discharge
of, any of the Secured Liabilities, the Security Agent may convert any moneys received or
recovered by the Security Agent from one currency to another, at a market rate of exchange. |
| (b) | The obligations of any Obligor to pay
in the due currency shall only be satisfied to the extent of the amount of the due currency
purchased after deducting the costs of conversion. |
The Security Agent shall be
entitled, in its discretion:
| (a) | to
set aside by way of reserve amounts required to meet, and to make and pay, any deductions
and withholdings (on account of taxes or otherwise) which it is or may be required by any
applicable law to make from any distribution or payment made by it under this Agreement;
and |
| (b) | to
pay all Taxes which may be assessed against it in respect of any of the Security Assets,
or as a consequence of performing its duties, or by virtue of its capacity as Security Agent
under any of the Finance Documents or otherwise (other than in connection with its remuneration
for performing its duties under this Agreement). |
| (a) | Any payment to be made in respect of
the Secured Liabilities by the Security Agent may be made to the Facility Agent on behalf
of the Finance Parties and any payment made in that way shall be a good discharge, to the
extent of that payment, by the Security Agent. |
| (b) | The Security Agent is under no obligation
to make the payments to the Facility Agent under paragraph (a) above in the same currency
as that in which the obligations and liabilities owing to the relevant Finance Party are
denominated. |
| 30. | Conduct
of business by the Secured Parties |
No provision of this Agreement
will:
| (a) | interfere
with the right of any Secured Party to arrange its affairs (tax or otherwise) in whatever
manner it thinks fit; |
| (b) | oblige
any Secured Party to investigate or claim any credit, relief, remission or repayment available
to it or the extent, order and manner of any claim; or |
| (c) | oblige
any Secured Party to disclose any information relating to its affairs (tax or otherwise)
or any computations in respect of Tax. |
| 31. | Sharing
among the Finance Parties |
| 31.1 | Payments to Finance Parties |
If a Finance Party (a "Recovering
Finance Party") receives or recovers any amount from an Obligor other than in accordance with Clause 32
(Payment mechanics) (a "Recovered Amount") and applies that amount to a payment due under the Finance Documents,
then:
| (a) | the
Recovering Finance Party shall, within three Business Days, notify details of the receipt
or recovery to the Facility Agent; |
| (b) | the
Facility Agent shall determine whether the receipt or recovery is in excess of the amount
the Recovering Finance Party would have been paid had the receipt or recovery been received
or made by the relevant Agent and distributed in accordance with Clause 32
(Payment mechanics), without taking account of any Tax which would be imposed on the
relevant Agent in relation to the receipt, recovery or distribution; and |
| (c) | the
Recovering Finance Party shall, within three Business Days of demand by the Facility Agent,
pay to the Facility Agent an amount (the "Sharing Payment") equal to such
receipt or recovery less any amount which the Facility Agent determines may be retained by
the Recovering Finance Party as its share of any payment to be made, in accordance with Clause
32.6 (Partial
payments). |
| 31.2 | Redistribution of payments |
The Facility Agent shall treat
the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering
Finance Party) (the "Sharing Finance Parties") in accordance with Clause 32.6
(Partial payments) towards the obligations of that Obligor to the Sharing Finance Parties.
| 31.3 | Recovering Finance Party's rights |
On a distribution by the Facility
Agent under Clause 31.2 (Redistribution of payments)
of a payment received by a Recovering Finance Party from an Obligor, as between the relevant Obligor and the Recovering Finance Party,
an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by that Obligor.
| 31.4 | Reversal of redistribution |
If any part of the Sharing
Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:
| (a) | each
Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent
for the account of that Recovering Finance Party an amount equal to the appropriate part
of its share of the Sharing Payment (together with an amount as is necessary to reimburse
that Recovering Finance Party for its proportion of any interest on the Sharing Payment which
that Recovering Finance Party is required to pay) (the "Redistributed Amount");
and |
| (b) | as
between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to
the relevant Redistributed Amount will be treated as not having been paid by that Obligor. |
| (a) | This Clause 31
shall not apply to the extent that the Recovering Finance Party would not, after making any
payment pursuant to this Clause 31, have a valid and enforceable claim against the relevant
Obligor. |
| (b) | A Recovering Finance Party is not obliged
to share with any other Finance Party any amount which the Recovering Finance Party has received
or recovered as a result of taking legal or arbitration proceedings, if: |
| (i) | it notified that other Finance Party
of the legal or arbitration proceedings; and |
| (ii) | that other Finance Party had an opportunity
to participate in those legal or arbitration proceedings but did not do so as soon as reasonably
practicable after having received notice and did not take separate legal or arbitration proceedings. |
SECTION 11
ADMINISTRATION
| 32.1 | Payments to the Agents |
| (a) | On each date on which an Obligor or a
Lender is required to make a payment under a Finance Document, that Obligor (subject to Clause
32.12 (Payments
to the Security Agent)) or Lender shall make the same available: |
| (i) | in relation to a payment in respect
of a U.S. Dollar Swingline Loan, to the U.S. Dollar Swingline Agent; |
| (ii) | in relation to a payment in relation
to a Euro Swingline Loan or a Sterling Swingline Loan, to the €/£ Swingline Agent; |
| (iii) | in relation to a payment in relation
to a Swiss Francs Swingline Loan, to the Swiss Francs Swingline Agent; |
| (iv) | in relation to a payment in relation
to a Danish Krone Swingline Loan/Norwegian Krone Swingline Loan/Swedish Krona Swingline Loan
(other than a Swedish Krona Swingline Loan in respect of Swingline Facility C), to the Danish
Krone/Norwegian Krone/Swedish Krona Swingline Agent; |
| (v) | in relation to a payment in relation
to a Swingline Facility C Nordic Loan, to the Facility C Swingline Agent; and |
| (vi) | in relation to any other payment,
to the Facility Agent, |
(unless a contrary indication
appears in a Finance Document) for value on the due date at the time and in such funds specified by the relevant Agent as being customary
at the time for settlement of transactions in the relevant currency in the place of payment.
| (b) | Payment shall be made to such account
in the principal financial centre of the country of that currency (or, in relation to euro,
in the principal financial centre in a Participating Member State or London, in the case
of a U.S. Dollar Swingline Loan, New York) and with such bank as the relevant Agent, in each
case, specifies. |
| 32.2 | Distributions by the Agents |
Each payment received by an
Agent under the Finance Documents for another Party shall, subject to Clause 32.3
(Distributions to an Obligor) and Clause 32.4 (Clawback
and pre-funding) and Clause 32.12 (Payments to the Security
Agent) and Schedule 6 (Borrowing Base), be made available by the relevant Agent as soon as practicable after receipt to the
Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office),
to such account as that Party may notify to the relevant Agent by not less than five Business Days' notice with a bank specified by that
Party in the principal financial centre of the country of that currency (or, in relation to euro, in the principal financial centre of
a Participating Member State or London, as specified by that Party).
| 32.3 | Distributions to an Obligor |
Each Agent and the Security
Agent may (with the consent of the Obligor or in accordance with Clause 33
(Set-off)) apply any amount received by it for that Obligor in or towards payment (on the
date and in the currency and funds of
receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be
so applied.
| 32.4 | Clawback and pre-funding |
| (a) | Where a sum is to be paid to an Agent
or the Security Agent under the Finance Documents for another Party, that Agent or, as the
case may be, the Security Agent is not obliged to pay that sum to that other Party (or to
enter into or perform any related exchange contract) until it has been able to establish
to its satisfaction that it has actually received that sum. |
| (b) | Unless paragraph (c) below applies,
if an Agent or the Security Agent pays an amount to another Party and it proves to be the
case that the relevant Agent or the Security Agent had not actually received that amount,
then the Party to whom that amount (or the proceeds of any related exchange contract) was
paid by that Agent or, as the case may be, the Security Agent shall on demand refund the
same to that Agent or, as the case may be, the Security Agent together with interest on that
amount from the date of payment to the date of receipt by that Agent or, as the case may
be, the Security Agent, calculated by it to reflect its cost of funds. |
| (c) | If an Agent is willing to make available
amounts for the account of the Company before receiving funds from the Lenders, then, if
and to the extent that that Agent does so but it proves to be the case that it does not then
receive funds from a Lender in respect of a sum which it paid to the Company: |
| (i) | that Agent shall notify the Company
of that Lender's identity and the Company shall on demand refund it to that Agent; and |
| (ii) | the Lender by whom those funds should
have been made available or, if that Lender fails to do so, the Company, shall on demand
pay to that Agent the amount (as certified by that Agent) which will indemnify that Agent
against any funding cost incurred by it as a result of paying out that sum before receiving
those funds from that Lender. |
| (a) | If, at any time, an Agent becomes an
Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance
Documents to that Agent in accordance with Clause 32.1
(Payments to the Agents) may instead either: |
| (i) | pay that amount directly to the required
recipient(s); or |
| (ii) | if in its absolute discretion it considers
that it is not reasonably practicable to pay that amount directly to the required recipient(s),
pay that amount or the relevant part of that amount to an interest-bearing account held with
an Acceptable Bank and, in relation to which no Insolvency Event has occurred and is continuing,
in the name of the Obligor or the Lender making the payment (the "Paying Party")
and designated as a trust account for the benefit of the Party or Parties beneficially entitled
to that payment under the Finance Documents (the "Recipient Party" or "Recipient
Parties"). |
In each case, such payments
must be made on the due date for payment under the Finance Documents.
| (b) | All interest accrued on the amount standing
to the credit of the trust account shall be for the benefit of the Recipient Party or the
Recipient Parties pro rata to their respective entitlements. |
| (c) | A Party which has made a payment in accordance
with this Clause 32.5
shall be discharged of the relevant payment obligation under the Finance Documents and shall
not take any credit risk with respect to the amounts standing to the credit of the trust
account. |
| (d) | Promptly upon the appointment of a successor
Agent in accordance with Clause 28.15
(Replacement of an Agent), each Paying Party shall (other than to the extent that
Party has given an instruction pursuant to paragraph (e) below) give all requisite instructions
to the bank with whom the trust account is held to transfer the amount (together with any
accrued interest) to the successor Agent for distribution to the relevant Recipient Party
or Recipient Parties in accordance with Clause 32.2
(Distributions by the Agents). |
| (e) | A Paying Party shall, promptly upon request
by a Recipient Party and to the extent: |
| (i) | that it has not given an instruction
pursuant to paragraph (d) above; and |
| (ii) | that it has been provided with the
necessary information by that Recipient Party, |
give all requisite instructions
to the bank with whom the trust account is held to transfer the relevant amount (together with any accrued interest) to that Recipient
Party.
| (a) | If an Agent receives a payment that is
insufficient to discharge all the amounts then due and payable by an Obligor under the Finance
Documents, that Agent shall apply that payment towards the obligations of that Obligor under
the Finance Documents in the following order: |
| (i) | first, in or towards payment pro rata
of any unpaid amount owing to each Agent, the Security Agent, any Receiver or Delegate; |
| (ii) | secondly, in or towards payment pro
rata of any unpaid amount owing to each Arranger under the Finance Documents; |
| (iii) | thirdly, in or towards payment pro
rata of any accrued interest, fee or commission due but unpaid under this Agreement; |
| (iv) | fourthly, in or towards payment pro
rata of any principal due but unpaid under this Agreement; and |
| (v) | fifthly, in or towards payment pro
rata of any other sum due but unpaid under the Finance Documents. |
| (b) | The Facility Agent shall, if so directed
by the Majority Lenders, vary the order set out in paragraphs (a)(iii) to (v) above. |
| (c) | Paragraphs (a) and (b) above
will override any appropriation made by an Obligor. |
| 32.7 | No set-off by Obligors |
All payments to be made by
an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
| (a) | Any payment under the Finance Documents
which is due to be made on a day that is not a Business Day shall be made on the next Business
Day in the same calendar month (if there is one) or the preceding Business Day (if there
is not). |
| (b) | During any extension of the due date
for payment of any principal or Unpaid Sum under this Agreement, interest is payable on the
principal or Unpaid Sum at the rate payable on the original due date. |
| (a) | Subject to paragraphs (b) to (e) below,
the Base Currency is the currency of account and payment for any sum due from an Obligor
under any Finance Document. |
| (b) | A repayment of a Loan or Unpaid Sum or
a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid
Sum is denominated, pursuant to this Agreement, on its due date. |
| (c) | Each payment of interest shall be made
in the currency in which the sum in respect of which the interest is payable was denominated,
pursuant to this Agreement, when that interest accrued. |
| (d) | Each payment in respect of costs, expenses
or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred. |
| (e) | Any amount expressed to be payable in
a currency other than the Base Currency shall be paid in that other currency. |
| (a) | Unless otherwise prohibited by law, if
more than one currency or currency unit are at the same time recognised by the central bank
of any country as the lawful currency of that country, then: |
| (i) | any reference in the Finance Documents
to, and any obligations arising under the Finance Documents in, the currency of that country
shall be translated into, or paid in, the currency or currency unit of that country designated
by the Facility Agent (after consultation with the Company); and |
| (ii) | any translation from one currency
or currency unit to another shall be at the official rate of exchange recognised by the central
bank for the conversion of that currency or currency unit into the other, rounded up or down
by the Facility Agent (acting reasonably). |
| (b) | If a change in any currency of a country
occurs, this Agreement will, to the extent the Facility Agent (acting reasonably and after
consultation with the Company) specifies to be necessary, be amended to comply with any generally
accepted conventions and market practice in the Relevant Market and otherwise to reflect
the change in currency. |
| 32.11 | Disruption to payment systems etc. |
If either the Facility Agent
determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by the Company that a Disruption
Event has occurred:
| (a) | the
Facility Agent may, and shall if requested to do so by the Company, consult with the Company
with a view to agreeing with the Company such changes to the operation or administration
of the Facility as the Facility Agent may deem necessary in the circumstances; |
| (b) | the
Facility Agent shall not be obliged to consult with the Company in relation to any changes
mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so
in the circumstances and, in any event, shall have no obligation to agree to such changes; |
| (c) | the
Facility Agent may consult with the Finance Parties in relation to any changes mentioned
in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not
practicable to do so in the circumstances; |
| (d) | any
such changes agreed upon by the Facility Agent and the Company shall (whether or not it is
finally determined that a Disruption Event has occurred) be binding upon the Parties as an
amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding
the provisions of Clause 38
(Amendments and waivers); |
| (e) | the
Facility Agent shall not be liable for any damages, costs or losses to any person, any diminution
in value or any liability whatsoever (including, without limitation, for negligence, gross
negligence or any other category of liability whatsoever but not including any claim based
on the fraud of the Facility Agent) arising as a result of its taking, or failing to take,
any actions pursuant to or in connection with this Clause 32.11;
and |
| (f) | the
Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph
(d) above. |
| 32.12 | Payments to the Security Agent |
Notwithstanding any other
provision of any Finance Document, at any time after any Security created by or pursuant to any Security Document becomes enforceable,
the Security Agent may require:
| (a) | any
Obligor to pay all sums due under any Finance Document; or |
| (b) | an
Agent to pay all sums received or recovered from an Obligor under any Finance Document, |
in each case as the Security
Agent may direct for application in accordance with the terms of the Security Documents.
| (a) | Each Obligor hereby irrevocably and unconditionally
undertakes to pay to the Security Agent amounts equal to any amounts owing from time to time
by that Obligor to any Secured Party under any Finance Document as and when those amounts
are due. |
| (b) | Each Obligor and the Security Agent acknowledge
that the obligations of each Obligor under paragraph (a) above are several and are separate
and independent from, and shall not in any way limit or affect, the corresponding obligations
of that Obligor to any Secured Party under any Finance Document (its "Corresponding
Debt") and the amounts for which each Obligor is liable under paragraph (a) above
(its "Parallel Debt") shall not be limited or affected in any way by its
Corresponding Debt, provided that: |
| (i) | the Parallel Debt of each Obligor shall
be decreased to the extent that its Corresponding Debt has been irrevocably paid or (in the
case of guarantee obligations) discharged; |
| (ii) | the Corresponding Debt of each Obligor
shall be decreased to the extent that its Parallel Debt has been irrevocably paid or (in
the case of guarantee obligations) discharged; and |
| (iii) | the amount of the Parallel Debt of
an Obligor shall at all times be equal to the amount of its Corresponding Debt. |
| (c) | For the purpose of this Clause 32.13,
the Security Agent acts in its own name and not as a trustee, and its claims in respect of
the Parallel Debt shall not be held on trust. The Security granted under |
the Finance Documents
to the Security Agent to secure the Parallel Debt is granted to the Security Agent in its
capacity as creditor of the Parallel Debt and shall not be held on trust.
| (d) | All monies received or recovered by the
Security Agent pursuant to this Clause 32.13,
and all amounts received or recovered by the Security Agent from or by the enforcement of
any Security granted to secure the Parallel Debt, shall be applied in accordance with Clause
32.6 (Partial
payments). |
| (e) | Without limiting or affecting the Security
Agent's rights against the Obligors (whether under this Clause 32.13
or under any other provision of the Finance Documents), each Obligor acknowledges that: |
| (i) | nothing in this Clause 32.13
shall impose any obligation on the Security Agent to advance any sum to any Obligor or otherwise
under any Finance Document, except in its capacity as Lender; and |
| (ii) | for the purpose of any vote taken
under any Finance Document, the Security Agent shall not be regarded as having any participation
or commitment other than those which it has in its capacity as a Lender. |
While an Event of Default
is continuing, a Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially
owned by that Finance Party) against any matured obligation owed by that Finance Party (other than in its capacity, if any, as a Clearing
Participant or Co-operating Clearing House) to that Obligor, regardless of the place of payment, booking branch or currency of either
obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange
in its usual course of business for the purpose of the set-off.
| 34.1 | Communications in writing |
Any communication to be made
under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by letter.
The address (and the department
or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or
delivered under or in connection with the Finance Documents is:
| (a) | in
the case of the Company or the Guarantor, that identified with its name below; |
| (b) | in
the case of each Lender, that notified in writing to the Facility Agent on or prior to the
date on which it becomes a Party; and |
| (c) | in
the case of each Agent and the Security Agent, that identified with its name below, |
or any substitute address
or department or officer as the Party may notify to the Facility Agent (or the Facility Agent may notify to the other Parties, if a change
is made by the Facility Agent) by not less than five Business Days' notice.
| (a) | Any communication or document made or
delivered by one person to another under or in connection with the Finance Documents will
only be effective, if by way of letter, when it has been left at the relevant address or
five Business Days after being deposited in the post postage prepaid in an envelope addressed
to it at that address, and, if a particular department or officer is specified as part of
its address details provided under Clause 34.2
(Addresses), if addressed to that department or officer. |
| (b) | Any communication or document to be made
or delivered to an Agent or the Security Agent will be effective only when actually received
by that Agent or the Security Agent and then only if it is expressly marked for the attention
of the department or officer identified with the relevant Agent’s or the Security Agent’s
signature below (or any substitute department or officer as the relevant Agent or the Security
Agent shall specify for this purpose). |
| (c) | All notices from or to an Obligor shall
be sent through the Facility Agent or, where appropriate, a Swingline Agent copied to the
Facility Agent. |
| (d) | Any communication or document made or
delivered to the Company in accordance with this Clause 34 will be deemed to have been made
or delivered to each of the Obligors. |
| (e) | Any communication or document which becomes
effective, in accordance with paragraphs (a) to (d) above, after 5:00 p.m. in
the place of receipt shall be deemed only to become effective on the following day. |
| 34.4 | Notification of address |
Promptly upon changing its
address, the relevant Agent shall notify the other Parties.
| 34.5 | Communication when Agent is Impaired
Agent |
If an Agent is an Impaired
Agent, the Parties and the Collateral Monitor may, instead of communicating with each other through such Agent, communicate with each
other directly and (while such Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to
be made or notices to be given to or by such Agent shall be varied so that communications may be made and notices given to or by the
relevant Parties or the Collateral Monitor directly. This provision shall not operate after a replacement Agent has been appointed.
| 34.6 | Electronic communication |
| (a) | Any communication to be made between
any two Parties under or in connection with the Finance Documents may be made by electronic
mail or other electronic means (including, without limitation, by way of posting to a secure
website) if those two Parties: |
| (i) | notify each other in writing of their
electronic mail address and/or any other information required to enable the transmission
of information by that means; and |
| (ii) | notify each other of any change to
their address or any other such information supplied by them by not less than five Business
Days' notice. |
| (b) | Any such electronic communication as
specified in paragraph (a) above to be made between an Obligor and a Finance Party may
only be made in that way to the extent that those two Parties agree that, unless and until
notified to the contrary, this is to be an accepted form of communication. |
| (c) | Any such electronic communication as
specified in paragraph (a) above made between any two Parties will be effective only
when actually received (or made available) in readable form and, in the case of any electronic
communication made by a Party to an Agent, only if it is addressed in such a manner as the
relevant Agent shall specify for this purpose. |
| (d) | Any electronic communication which becomes
effective, in accordance with paragraph (c) above, after 5:00 p.m. in the place
in which the Party to whom the relevant communication is sent or made available has its address
for the purpose of this Agreement shall be deemed only to become effective on the following
day. |
| (e) | Any reference in a Finance Document to
a communication being sent or received shall be construed to include that communication being
made available in accordance with this Clause 34.6. |
| (a) | Any notice given under or in connection
with any Finance Document must be in English. |
| (b) | All other documents provided under or
in connection with any Finance Document must be: |
| (ii) | if not in English, and if so required
by an Agent or the Security Agent, accompanied by a certified English translation and, in
this case, the English translation will prevail unless the document is a constitutional,
statutory or other official document. |
| 35. | Calculations
and certificates |
In any litigation or arbitration
proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are
prima facie evidence of the matters to which they relate.
| 35.2 | Certificates and Determinations |
Any certification or determination
by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters
to which it relates.
| 35.3 | Day count convention and interest
calculation |
| (a) | Subject to paragraph (b) below,
any interest, commission or fee accruing under a Finance Document will accrue from day to
day and is calculated: |
| (i) | on the basis of the actual number of
days elapsed and a year of 360 days (or, in any case where the practice in the Relevant Market
differs, in accordance with that market practice); and |
| (ii) | subject to paragraph (c) below,
without rounding. |
| (b) | All computations of interest for any
U.S. Dollar Swingline Loan when the Swingline Rate is determined by reference to Bank of
America's "prime commercial lending rate" shall be made on the basis of a year
of 365 or 366 days, as the case may be, and actual days elapsed. |
| (c) | The aggregate amount of any accrued interest,
commission or fee which is, or becomes, payable by an Obligor under a Finance Document shall
be rounded to 2 decimal places. |
If, at any time, any provision
of a Finance Document is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of
any other jurisdiction will in any way be affected or impaired.
No failure to exercise, nor
any delay in exercising, on the part of any Finance Party, any right or remedy under a Finance Document shall operate as a waiver of
any such right or remedy or constitute an election to affirm any of the Finance Documents. No waiver or election to affirm any Finance
Document on the part of any Finance Party shall be effective unless in writing. No single or partial exercise of any right or remedy
shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Finance
Document are cumulative and not exclusive of any rights or remedies provided by law.
| 38. | Amendments
and waivers |
| (a) | Subject to Clause 38.2
(All Lender matters) and Clause 38.3
(Other exceptions) any term of the Finance Documents may be amended or waived only
with the consent of the Majority Lenders and the Obligors and any such amendment or waiver
will be binding on all Parties. |
| (b) | The Facility Agent may effect, on behalf
of any Finance Party, any amendment or waiver permitted by this Clause 38. |
| (c) | Paragraph (c) of Clause 26.10
(Pro rata interest settlement) shall apply to this Clause 38. |
Subject to Clause 38.7 (Changes
to reference rates) an amendment or waiver of any term of any Finance Document that has the effect of changing or which relates to:
| (a) | the
definition of "Majority Lenders" in Clause 1.1
(Definitions); |
| (b) | an
extension to the date of payment of any amount under the Finance Documents; |
| (c) | a
reduction in the Margin or a reduction in the amount of any payment of principal, interest,
fees or commission payable; |
| (d) | a
change in currency of payment of any amount under the Finance Documents; |
| (e) | an
increase in any Commitment, an extension of any Availability Period or any requirement that
a cancellation of Commitments reduces the Commitments of the Lenders rateably under the Facility; |
| (f) | a
change to the Company or the Guarantor other than in accordance with Clause 27
(Changes to the Obligors); |
| (g) | any
provision which expressly requires the consent of all the Lenders; |
| (h) | Clause
2.4 (Finance Parties' rights and obligations), Clause
5.1 (Delivery of a Utilisation Request for Revolving Loans),
Clause 6.1 (Delivery of a Utilisation Request for Swingline Loans), Clause 9.1
(Illegality), Clause 9.2 (Change of control and CGM
Merger Event), Clause 9.8 (Application of prepayments),
Clause 26 (Changes to the Lenders), Clause 27
(Changes to |
the Obligors), Clause
31 (Sharing among the Finance Parties), Clause 43
(Governing law), Clause 44.1 (Jurisdiction) or
this Clause 38;
| (i) | the
release of any Security created pursuant to any Security Document or of any Collateral (except
as provided in any Security Document); |
| (j) | the
nature or scope of the guarantee and indemnity granted under Clause 19
(Guarantee and indemnity); or |
| (k) | changes
to the Securities Discount and/or the Currency Discount as set out in Part I of Schedule
6 (Borrowing Base), |
shall not be made without
the prior consent of all the Lenders.
| (a) | An amendment or waiver which relates
to the rights or obligations of an Agent, the Security Agent or an Arranger (each in their
capacity as such) may not be effected without the consent of that Agent, the Security Agent
or that Arranger, as the case may be. |
| (b) | Any amendment or waiver that applies
or would, but for this paragraph (b), apply which: |
| (i) | relates only to the rights or obligations
applicable to a particular Loan, Facility or class of Lender; and |
| (ii) | does not materially and adversely
affect the rights or interest of Lenders in respect of any other Loan or Facility or another
class of Lender, |
may be made in accordance
with this Clause 38 but as if references in this Clause 38 to the specified proportion of Lender (including, for the avoidance of doubt,
all the Lenders) whose consent would, but for this paragraph (b), be required for that amendment or waiver were to that proportion of
the Lenders participating in that particular Loan or Facility or forming part of that particular class.
| 38.4 | Disenfranchisement of Defaulting
Lenders |
| (a) | For so long as a Defaulting Lender has
any Available Commitment, in ascertaining: |
| (i) | the Majority Lenders; or |
| (A) | any given percentage (including, for
the avoidance of doubt, unanimity) of the Total Commitments under the relevant Facility/ies;
or |
| (B) | the agreement of any specified group
of Lenders, |
has been obtained to approve
any request for a consent, waiver, amendment or other vote under the Finance Documents,
that Defaulting Lender's (and
its Related Lender’s) Commitments under the relevant Facility/ies will be reduced by the amount of its Available Commitments under
the Facility/ies and:
| (iii) | to the extent that that reduction
results in that Defaulting Lender’s Total Commitments being zero, that Defaulting Lender
shall be deemed not to be a Lender for the purposes of paragraphs (i) and (ii) above;
and |
| (iv) | to the extent that that reduction
results in that Defaulting Lender’s Swingline Commitment being zero, that Defaulting
Lender shall be deemed not to be a Swingline Lender for the purposes of paragraph (ii)(B) above. |
| (b) | For the purposes of this Clause 38.4,
an Agent may assume that the following Lenders are Defaulting Lenders: |
| (i) | any Lender which has notified that
Agent that it has become a Defaulting Lender; and |
| (ii) | any Lender in relation to which it
is aware that any of the events or circumstances referred to in paragraph (a), (b) or
(c) of the definition of "Defaulting Lender" has occurred (and, in the case
of the events and circumstances referred to in paragraph (a) of the definition of "Defaulting
Lender", none of the exceptions referred to in that definition apply), |
unless it has received notice
to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by that Agent) or that Agent is
otherwise aware that the Lender has ceased to be a Defaulting Lender.
If any Defaulting Lender fails
to respond to a request for a consent, waiver, amendment of or in relation to any term of any Finance Document or any other vote of Lenders
under the terms of this Agreement within 15 Business Days (unless the Company and the Facility Agent agree to a longer time period in
relation to any request) of that request being made:
| (a) | its
Commitment(s) shall not be included for the purpose of calculating the Total Commitments
under the Facility/ies when ascertaining whether any relevant percentage (including, for
the avoidance of doubt, unanimity) of Total Commitments has been obtained to approve that
request; and |
| (b) | its
status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement
of any specified group of Lenders has been obtained to approve that request. |
| 38.6 | Replacement of a Defaulting Lender |
| (a) | The Company may, at any time a Lender
has become and continues to be a Defaulting Lender, by giving three Business Days' prior
written notice to the Facility Agent and such Lender: |
| (i) | replace such Lender by requiring such
Lender to (and, to the extent permitted by law such Lender shall) transfer pursuant to Clause
26 (Changes
to the Lenders) all (and not part only) of its rights and obligations under this Agreement; |
| (ii) | require such Lender to (and, to the
extent permitted by law such Lender shall) transfer pursuant to Clause 26
(Changes to the Lenders) all (and not part only) of: |
| (A) | the undrawn Commitment of the Lender;
and |
| (B) | the undrawn Swingline Commitment of
the Lender; or |
| (iii) | require such Lender to (and, to the
extent permitted by law such Lender shall) transfer pursuant to Clause 26
(Changes to the Lenders) all (and not part only) of its rights and obligations in
respect of its Revolving Facility or its Swingline Facility, |
to a Lender or other bank,
financial institution, trust, fund or other entity (a "Replacement Lender") selected by the Company and which confirms
its willingness to assume and does assume all the obligations or all the relevant obligations of the transferring Lender in accordance
with Clause 26 (Changes to the Lenders) for a purchase
price in cash payable at the time of transfer which is either:
| (A) | 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 26.10
(Pro rata interest |
settlement)), Break
Costs and other amounts payable in relation thereto under the Finance Documents; or
| (B) | in an amount agreed between that Defaulting
Lender, the Replacement Lender and the Company and which does not exceed the amount described
in paragraph (A) above. |
| (b) | Any transfer of rights and obligations
of a Defaulting Lender pursuant to this Clause 38.6
shall be subject to the following conditions: |
| (i) | the Company shall have no right to
replace an Agent or Security Agent; |
| (ii) | none of the Agents nor the Defaulting
Lender shall have any obligation to the Company to find a Replacement Lender; |
| (iii) | the transfer must take place no later
than three Business Days after the notice referred to in paragraph (a) above; |
| (iv) | in no event shall the Defaulting Lender
be required to pay or surrender to the Replacement Lender any of the fees received by the
Defaulting Lender pursuant to the Finance Documents; |
| (v) | the Defaulting Lender shall only be
obliged to transfer its rights and obligations pursuant to paragraph (a) above once
it is satisfied that it has complied with all necessary "know your customer" or
other similar checks under all applicable laws and regulations in relation to that transfer
to the Replacement Lender; and |
| (vi) | the Defaulting Lender shall not be
obliged to transfer its rights and obligations pursuant to paragraph (a) above to the
extent that the transfer would result in that Lender (or its Affiliate) failing to meet the
requirement set out in paragraph (f) of Clause 26.3 (Other conditions of
assignment or transfer). |
| (c) | The Defaulting Lender shall perform the
checks described in paragraph (b)(v) above as soon as reasonably practicable following
delivery of a notice referred to in paragraph (a) above and shall notify the Facility
Agent and the Company when it is satisfied that it has complied with those checks. |
| 38.7 | Changes to reference rates |
| (a) | Subject to Clause 38.3
(Other exceptions), if a Published Rate Replacement Event has occurred in relation
to any Published Rate for a currency which can be selected for a Loan, any amendment or waiver
which relates to: |
| (i) | providing for the use of a Replacement
Reference Rate in relation to that currency in place of that Published Rate; and |
| (A) | aligning any provision of any Finance
Document to the use of that Replacement Reference Rate; |
| (B) | enabling that Replacement Reference
Rate to be used for the calculation of interest under this Agreement (including, without
limitation, any consequential changes required to enable that Replacement Reference Rate
to be used for the purposes of this Agreement); |
| (C) | implementing market conventions applicable
to that Replacement Reference Rate; |
| (D) | providing
for appropriate fallback (and market disruption) provisions for that Replacement Reference
Rate; or |
| (E) | adjusting
the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of
economic value from one Party to another as a result of the application of that Replacement
Reference Rate (and if any adjustment or method for calculating any adjustment has been formally
designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall
be determined on the basis of that designation, nomination or recommendation), |
may be made with the consent
of the Facility Agent (acting on the instructions of the Majority Lenders) and the Company.
(b) | An amendment or waiver that
relates to, or has the effect of, aligning the means of calculation of interest on an RFR
Loan in any currency under this Agreement to any recommendation of a Relevant Nominating
Body which: |
| (i) | relates
to the use of a risk-free reference rate on a compounded basis in the international or any
relevant domestic syndicated loan markets; and |
| (ii) | is
issued on or after the date of the 2023 Amendment and Restatement Agreement, |
may be made with the consent
of the Facility Agent (acting on the instructions of the Majority Lenders) and the Company.
(c) | If any Lender fails to respond
to a request for an amendment or waiver described in paragraph (a) or (b) above
within 15 Business Days (or such longer time period in relation to any request which the
Company and the Facility Agent may agree) of that request being made: |
| (i) | its
Commitment(s) shall not be included for the purpose of calculating the Total Commitments
under the Facility/ies when ascertaining whether any relevant percentage of Total Commitments
has been obtained to approve that request; and |
| (ii) | its
status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement
of any specified group of Lenders has been obtained to approve that request. |
39. | Confidential
Information |
Each Finance Party agrees
to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 39.2
(Disclosure of Confidential Information) and Clause 39.3
(Disclosure to numbering service providers), and to ensure that all Confidential Information is protected with security measures
and a degree of care that would apply to its own confidential information.
39.2 | Disclosure of Confidential
Information |
Any Finance Party may disclose:
| (a) | to
any of its Affiliates and Related Funds and any of its or their officers, directors, employees,
professional advisers, auditors, partners and Representatives such Confidential Information
as that Finance Party shall consider appropriate if any person to whom the Confidential Information
is to be given pursuant to this paragraph (a) is informed in writing of its confidential
nature and that some or all of such Confidential Information may be price-sensitive information
except that there shall be no such requirement to so inform if the recipient is subject to
professional obligations to maintain the confidentiality of the |
| | information or is otherwise bound by requirements of confidentiality in relation to the Confidential
Information; |
| | |
| (b) | to
any person: |
| (i) | to
(or through) whom it assigns or transfers (or may potentially assign or transfer) all or
any of its rights and/or obligations under one or more Finance Documents or which succeeds
(or which may potentially succeed) it as an Agent and, in each case, to any of that person's
Affiliates, Related Funds, Representatives and professional advisers; |
| (ii) | with
(or through) whom it enters into (or may potentially enter into), whether directly or indirectly,
any sub-participation in relation to, or any other transaction under which payments are to
be made or may be made by reference to, one or more Finance Documents and/or one or more
Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional
advisers; |
| (iii) | appointed
by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies
to receive communications, notices, information or documents delivered pursuant to the Finance
Documents on its behalf (including, without limitation, any person appointed under paragraph
(b) of Clause 28.17
(Relationship with the other Finance Parties)); |
| (iv) | who
invests in or otherwise finances (or may potentially invest in or otherwise finance), directly
or indirectly, any transaction referred to in paragraph (b)(i) or (ii) above; |
| (v) | to
whom information is required or requested to be disclosed by any court of competent jurisdiction
or any governmental, banking, taxation or other regulatory authority or similar body, the
rules of any relevant stock exchange or pursuant to any applicable law or regulation; |
| (vi) | to
whom information is required to be disclosed in connection with, and for the purposes of,
any litigation, arbitration, administrative or other investigations, proceedings or disputes; |
| (vii) | to
whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security
(or may do so) pursuant to Clause 26.9
(Security over Lenders' rights); |
| (ix) | with
the consent of the Company; |
in each case, such Confidential
Information as that Finance Party shall consider appropriate if:
| (A) | in
relation to paragraphs (b)(i), (ii) and (iii) above, the person to whom the Confidential
Information is to be given has entered into a Confidentiality Undertaking except that there
shall be no requirement for a Confidentiality Undertaking if the recipient is a professional
adviser and is subject to professional obligations to maintain the confidentiality of the
Confidential Information; |
| (B) | in
relation to paragraph (b)(iv) above, the person to whom the Confidential Information
is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements
of confidentiality in relation to the Confidential |
| | Information they receive and is informed that some or all of such Confidential Information may be price-sensitive
information; |
| | |
| (C) | in
relation to paragraphs (b)(v), (vi) and (vii) above, the person to whom the Confidential
Information is to be given is informed of its confidential nature and that some or all of
such Confidential Information may be price-sensitive information except that there shall
be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable
so to do in the circumstances; |
| (c) | to
any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or
(ii) above applies to provide administration or settlement services in respect of one
or more of the Finance Documents including without limitation, in relation to the trading
of participations in respect of the Finance Documents, such Confidential Information as may
be required to be disclosed to enable such service provider to provide any of the services
referred to in this paragraph (c) if the service provider to whom the Confidential Information
is to be given has entered into a confidentiality agreement substantially in the form of
the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service
Providers or such other form of confidentiality undertaking agreed between the Company and
the relevant Finance Party; and |
| (d) | to
any rating agency (including its professional advisers) such Confidential Information as
may be required to be disclosed to enable such rating agency to carry out its normal rating
activities in relation to the Finance Documents and/or the Obligors if the rating agency
to whom the Confidential Information is to be given is informed of its confidential nature
and that some or all of such Confidential Information may be price-sensitive information. |
Nothing in any Finance Document
shall prevent disclosure of any Confidential Information or other matter to the extent that preventing that disclosure would otherwise
cause any transaction contemplated by the Finance Documents or any transaction carried out in connection with any transaction contemplated
by the Finance Documents to become an arrangement described in Part II A 1 of Annex IV of Directive 2011/16/EU.
39.3 | Disclosure to numbering
service providers |
(a) | Any Finance Party may disclose
to any national or international numbering service provider appointed by that Finance Party
to provide identification numbering services in respect of this Agreement, the Facilities
and/or one or more Obligors the following information: |
| (ii) | country
of domicile of Obligors; |
| (iii) | place
of incorporation of Obligors; |
| (iv) | date
of this Agreement or the date of the 2023 Amendment and Restatement Agreement; |
| (v) | Clause
43 (Governing
law); |
| (vi) | the
names of an Agent and an Arranger; |
| (vii) | date
of each amendment and restatement of this Agreement; |
| (viii) | amounts
of, and names of, the Facilities (and any tranches); |
| (ix) | amount
of Total Commitments; |
| (x) | the
Base Currency and the Optional Currencies of the Facilities; |
| (xi) | type
of the Facilities; |
| (xii) | ranking
of the Facilities; |
| (xiii) | Termination
Date of the Facilities; |
| (xiv) | changes
to any of the information previously supplied pursuant to paragraphs (i) to (xiii) above;
and |
| (xv) | such
other information agreed between such Finance Party and the Company, |
to enable such numbering
service provider to provide its usual syndicated loan numbering identification services.
(b) | The Parties acknowledge and
agree that each identification number assigned to this Agreement, the Facilities and/or one
or more Obligors by a numbering service provider and the information associated with each
such number may be disclosed to users of its services in accordance with the standard terms
and conditions of that numbering service provider. |
(c) | The Company represents that
none of the information set out in paragraphs (a)(i) to (xv) above is, nor will
at any time be, unpublished price-sensitive information. |
(d) | The Facility Agent shall notify
the Company and the other Finance Parties of: |
| (i) | the
name of any numbering service provider appointed by the Facility Agent in respect of this
Agreement, the Facilities and/or one or more Obligors; and |
| (ii) | the
number or, as the case may be, numbers assigned to this Agreement, the Facilities and/or
one or more Obligors by such numbering service provider. |
This Clause 39
constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents
regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
Each of the Finance Parties
acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information
may be regulated or prohibited by applicable legislation, including securities law relating to insider dealing and market abuse and each
of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
39.6 | Notification of disclosure |
Each of the Finance Parties
agrees (to the extent permitted by law and regulation) to inform the Company:
| (a) | of
the circumstances of any disclosure of Confidential Information made pursuant to paragraph
(b)(v) of Clause 39.2
(Disclosure of Confidential Information) except where such disclosure is made to any
of the persons referred to in that paragraph during the ordinary course of its supervisory
or regulatory function; and |
| (b) | upon
becoming aware that Confidential Information has been disclosed in breach of this Clause
39. |
39.7 | Continuing obligations |
The obligations in this Clause
39 are continuing and, in particular, shall survive and remain
binding on each Finance Party for a period of 12 months from the earlier of:
| (a) | the
date on which all amounts payable by the Obligors under or in connection with this Agreement
have been paid in full and all Commitments have been cancelled or otherwise cease to be available;
and |
| (b) | the
date on which such Finance Party otherwise ceases to be a Finance Party. |
40. | Confidentiality
of Funding Rates |
40.1 | Confidentiality and disclosure |
(a) | Each Agent and each Obligor
agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the
extent permitted by paragraphs (b) and (c) below. |
(b) | Each Agent may disclose: |
| (i) | any
Funding Rate to the Company pursuant to Clause 10.3
(Calculation of interest on Swingline Loans) or Clause 10.7
(Notifications); and |
| (ii) | any
Funding Rate to any person appointed by it to provide administration services in respect
of one or more of the Finance Documents to the extent necessary to enable such service provider
to provide those services if the service provider to whom that information is to be given
has entered into a confidentiality agreement substantially in the form of the LMA Master
Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such
other form of confidentiality undertaking agreed between the Facility Agent and the relevant
Lender, as the case may be. |
(c) | An Agent may disclose any Funding
Rate, and each Obligor may disclose any Funding Rate, to: |
| (i) | any
of its Affiliates and any of its or their officers, directors, employees, professional advisers,
auditors, partners and Representatives if any person to whom that Funding Rate is to be given
pursuant to this paragraph (i) is informed in writing of its confidential nature and
that it may be price-sensitive information except that there shall be no such requirement
to so inform if the recipient is subject to professional obligations to maintain the confidentiality
of that Funding Rate or is otherwise bound by requirements of confidentiality in relation
to it; |
| (ii) | any
person to whom information is required or requested to be disclosed by any court of competent
jurisdiction or any governmental, banking, taxation or other regulatory authority or similar
body, the rules of any relevant stock exchange or pursuant to any applicable law or
regulation if the person to whom that Funding Rate is to be given is informed in writing
of its confidential nature and that it may be price-sensitive information except that there
shall be no requirement to so inform if, in the opinion of the Facility Agent or the relevant
Obligor, as the case may be, it is not practicable to do so in the circumstances; |
| (iii) | any
person to whom information is required to be disclosed in connection with, and for the purposes
of, any litigation, arbitration, administrative or other investigations, proceedings or disputes
if the person to whom that Funding Rate is to be given is informed in writing of its confidential
nature and that it may be price-sensitive information except that there shall be no requirement
to so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the case
may be, it is not practicable to do so in the circumstances; and |
| (iv) | any
person with the consent of the relevant Lender, as the case may be. |
(a) | Each Agent and each Obligor
acknowledge that each Funding Rate is or may be price-sensitive information and that its
use may be regulated or prohibited by applicable legislation, including securities law relating
to insider dealing and market abuse and each Agent and each Obligor undertake not to use
any Funding Rate for any unlawful purpose. |
(b) | Each Agent and each Obligor
agree (to the extent permitted by law and regulation) to inform the relevant Lender, as the
case may be: |
| (i) | of
the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 40.1
(Confidentiality and disclosure) except where such disclosure is made to any of the
persons referred to in that paragraph during the ordinary course of its supervisory or regulatory
function; and |
| (ii) | upon
becoming aware that any information has been disclosed in breach of this Clause 40. |
No Event of Default will
occur under Clause 25.3 (Other obligations) by reason only of an Obligor's failure to comply with this Clause 40.
Each Finance Document may
be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy
of the Finance Document. The words "execution," "signed," and "signature," and words of like import in
any Finance Document shall be deemed to include the consent of each party to any Finance Document to execute using electronic signatures
or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually
executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable
law.
42. | Contractual
Recognition of Bail-In |
Notwithstanding any other
term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts
that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In Action
by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
| (a) | any
Bail-In Action in relation to any such liability, including (without limitation): |
| (i) | a
reduction, in full or in part, in the principal amount, or outstanding amount due (including
any accrued but unpaid interest) in respect of any such liability; |
| (ii) | a
conversion of all, or part of, any such liability into shares or other instruments of ownership
that may be issued to, or conferred on it; and |
| (iii) | a
cancellation of any such liability; and |
| (b) | a
variation of any term of any Finance Document to the extent necessary to give effect to any
Bail-In Action in relation to any such liability. |
SECTION 12
GOVERNING LAW
AND ENFORCEMENT
This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English law.
(a) | The courts of England have exclusive
jurisdiction to settle any dispute arising out of or in connection with this Agreement (including
a dispute relating to the existence, validity or termination of this Agreement or any non-contractual
obligation arising out of or in connection with this Agreement) (a "Dispute"). |
(b) | The Parties agree that the courts
of England are the most appropriate and convenient courts to settle Disputes and accordingly
no Party will argue to the contrary. |
(c) | Notwithstanding paragraph (a) above,
no Finance Party shall be prevented from taking proceedings relating to a Dispute in any
other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take
concurrent proceedings in any number of jurisdictions. |
Without prejudice to any
other mode of service allowed under any relevant law:
| (a) | the
Company irrevocably appoints Cboe Clear Europe N.V., London Branch (ATTN: Legal &
Compliance Department) of The Monument Building, 11 Monument Street, 5th floor, London, EC3R
8AF, United Kingdom, as its agent for service of process in relation to any proceedings before
the English courts in connection with any Finance Document; |
| (b) | the
Guarantor irrevocably appoints Cboe Worldwide Holdings Limited (ATTN: Karl Spielmann, Company
Secretary) of The Monument Building, 11 Monument Street, London, EC3R 8AF, United Kingdom,
as its agent for service of process in relation to any proceedings before the English courts
in connection with any Finance Document; and |
| (c) | each
of the Company and the Guarantor agrees that failure by a process agent to notify the Company
or Guarantor, as applicable, of the process will not invalidate the proceedings concerned. |
Each Lender hereby notifies
each Obligor that, pursuant to the requirements of the USA Patriot Act, such Lender is required to obtain, verify and record information
that identifies such Obligor, which information includes the name and address of such Obligor and other information that will allow such
Lender to identify such Obligor in accordance with the USA Patriot Act.
Each Party hereby waives
any right it may have to a jury trial in respect of any litigation directly or indirectly arising out of, under or in connection with
this Agreement or any of the other Finance Documents or any dealings between the Parties relating to the subject matter of this Agreement
or the Lender/Company/Guarantor relationship. Each Party hereby acknowledges that this waiver is a material inducement to enter into
a business relationship, it has relied on this waiver in entering
into this Agreement and it
will continue to rely on this waiver in related future dealings. Each Party hereby further warrants and represents that it has reviewed
this waiver with its legal counsel and it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel.
This waiver is irrevocable and may not be modified other than by a written waiver specifically referring to this Clause 44.4 and executed
by each of the Parties. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.
To the extent that the Finance
Documents provide support, through a guarantee or otherwise, for any Hedging Agreement or any other agreement or instrument that is a
QFC (such support, "QFC Credit Support", and each such QFC, a "Supported QFC"), the parties acknowledge
and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance
Act and Title II of the Dodd-Frank Act (together with the regulations promulgated thereunder, the "U.S. Special Resolution Regimes")
in respect of such Supported QFC and QFC Credit Support:
| (a) | In
the event a Covered Entity that is party to a Supported QFC (each, a "Covered Party")
becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such
Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation
in or under such Supported QFC and such QFC Credit Support, and any rights in property securing
such Supported QFC or such QFC Credit Support) from such Covered Party will be effective
to the same extent as the transfer would be effective under the U.S. Special Resolution Regime
if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights
in property) were governed by the laws of the United States or a state of the United States.
In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to
a proceeding under a U.S. Special Resolution Regime, Default Rights under the Finance Documents
that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised
against such Covered Party are permitted to be exercised to no greater extent than such Default
Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and
the Finance Documents were governed by the laws of the United States or a state of the United
States. Without limitation of the foregoing, it is understood and agreed that rights and
remedies of the parties with respect to a Defaulting Lender shall in no event affect the
rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. |
| (b) | As
used in this Clause 44.5, the following terms have the following meanings: |
"BHC Act Affiliate"
of a party means an "affiliate" (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such
party.
"Covered Entity"
means any of the following:
| (i) | a
"covered entity" as that term is defined in, and interpreted in accordance with,
12 C.F.R. § 252.82(b); |
| (ii) | a
"covered bank" as that term is defined in, and interpreted in accordance with,
12 C.F.R. § 47.3(b); or |
| (iii) | a
"covered FSI" as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 382.2(b). |
"Default Right"
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable.
"QFC" has
the meaning assigned to the term "qualified financial contract" in, and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
This Agreement has been entered into
on the date stated at the beginning of this Agreement.
Schedule
1
The
Original Lenders
Part I
The
Original Revolving Lenders
Name of
Original Revolving Lender |
Revolving
Facility A Commitment (€) |
Revolving
Facility B Commitment |
Revolving
Facility C Commitment |
Revolving
Facility D Commitment |
Revolving
Facility E Commitment |
Revolving
Facility F Commitment |
Revolving
Facility G Commitment |
Revolving
Facility H Commitment |
Revolving
Facility I Commitment |
Revolving
Facility J Commitment |
Bank
of America Europe DAC |
|
|
|
|
|
|
|
|
|
100,000,000.00 |
Bank
of China Limited, London Branch |
|
|
|
|
|
100,000,000.00 |
|
|
|
|
Barclays
Bank PLC |
|
62,500,000.00 |
|
|
|
|
|
|
|
|
Citibank
Europe PLC |
|
|
|
|
|
|
|
|
|
100,000,000.00 |
Commerzbank
AG |
|
|
|
|
|
|
|
|
100,000,000.00 |
|
Deutsche
Bank Luxembourg S.A. |
62,500,000.00 |
|
|
|
|
|
|
|
|
|
Name of
Original Revolving Lender |
Revolving
Facility A Commitment (€) |
Revolving
Facility B Commitment |
Revolving
Facility C Commitment |
Revolving
Facility D Commitment |
Revolving
Facility E Commitment |
Revolving
Facility F Commitment |
Revolving
Facility G Commitment |
Revolving
Facility H Commitment |
Revolving
Facility I Commitment |
Revolving
Facility J Commitment |
Goldman
Sachs Bank USA |
|
|
|
|
|
|
100,000,000.00 |
|
|
|
Industrial
and Commercial Bank of China Limited London Branch |
62,500,000.00 |
|
|
|
|
|
|
|
|
|
JPMorgan
Chase Bank, N.A., London Branch |
|
|
|
95,000,000.00 |
|
|
|
|
|
|
Lloyds
Bank Plc |
|
62,500,000.00 |
|
|
|
|
|
|
|
|
Nordea
Danmark, Filial af Nordea Bank Abp, Finland |
|
|
|
|
|
|
|
100,000,000.00 |
|
|
Royal
Bank of Canada |
|
|
|
|
76,250,000.00 |
|
|
|
|
|
Skandinaviska
Enskilda Banken AB (publ) |
|
|
90,000,000.00 |
|
|
|
|
|
|
|
The
Toronto-Dominion |
|
62,500,000.00 |
|
|
|
|
|
|
|
|
Name of
Original Revolving Lender |
Revolving
Facility A Commitment (€) |
Revolving
Facility B Commitment |
Revolving
Facility C Commitment |
Revolving
Facility D Commitment |
Revolving
Facility E Commitment |
Revolving
Facility F Commitment |
Revolving
Facility G Commitment |
Revolving
Facility H Commitment |
Revolving
Facility I Commitment |
Revolving
Facility J Commitment |
Bank,
London Branch |
|
|
|
|
|
|
|
|
|
|
Wells
Fargo Bank International Unlimited Company |
|
|
|
|
76,250,000.00 |
|
|
|
|
|
Part II
The
Original Swingline Lenders
Name of
Original
Swingline
Lender |
Swingline
Facility A
Commitment |
Swingline
Facility B
Commitment |
Swingline
Facility C
Commitment |
Swingline
Facility D
Commitment |
Swingline
Facility E
Commitment |
Swingline
Facility F
Commitment |
Swingline
Facility G
Commitment |
Swingline
Facility H
Commitment |
Swingline
Facility I
Commitment |
Swingline
Facility J
Commitment |
Bank
of America Europe DAC |
|
|
|
|
|
|
|
|
|
100,000,000.00 |
Bank
of China Limited, London Branch |
|
|
|
|
|
100,000,000.00 |
|
|
|
|
Barclays
Bank PLC |
|
62,500,000.00 |
|
|
|
|
|
|
|
|
Citibank
Europe PLC |
|
|
|
|
|
|
|
|
|
100,000,000.00 |
Commerzbank
AG |
|
|
|
|
|
|
|
|
100,000,000.00 |
|
Deutsche
Bank Luxembourg S.A. |
62,500,000.00 |
|
|
|
|
|
|
|
|
|
Goldman
Sachs Bank USA |
|
|
|
|
|
|
100,000,000.00 |
|
|
|
Industrial
and Commercial |
62,500,000.00 |
|
|
|
|
|
|
|
|
|
Name of
Original
Swingline
Lender |
Swingline
Facility A
Commitment |
Swingline
Facility B
Commitment |
Swingline
Facility C
Commitment |
Swingline
Facility D
Commitment |
Swingline
Facility E
Commitment |
Swingline
Facility F
Commitment |
Swingline
Facility G
Commitment |
Swingline
Facility H
Commitment |
Swingline
Facility I
Commitment |
Swingline
Facility J
Commitment |
Bank
of China Limited London Branch |
|
|
|
|
|
|
|
|
|
|
JPMorgan
Chase Bank, N.A., London Branch |
|
|
|
95,000,000.00 |
|
|
|
|
|
|
Lloyds
Bank Plc |
|
62,500,000.00 |
|
|
|
|
|
|
|
|
Nordea
Danmark, Filial af Nordea Bank Abp, Finland |
|
|
|
|
|
|
|
100,000,000.00 |
|
|
Royal
Bank of Canada |
|
|
|
|
76,250,000.00 |
|
|
|
|
|
Skandinaviska
Enskilda Banken AB (publ) |
|
|
90,000,000.00 |
|
|
|
|
|
|
|
The
Toronto-Dominion Bank, London Branch |
|
62,500,000.00 |
|
|
|
|
|
|
|
|
Name of
Original
Swingline
Lender |
Swingline
Facility A
Commitment |
Swingline
Facility B
Commitment |
Swingline
Facility C
Commitment |
Swingline
Facility D
Commitment |
Swingline
Facility E
Commitment |
Swingline
Facility F
Commitment |
Swingline
Facility G
Commitment |
Swingline
Facility H
Commitment |
Swingline
Facility I
Commitment |
Swingline
Facility J
Commitment |
Wells
Fargo Bank International Unlimited Company |
|
|
|
|
76,250,000.00 |
|
|
|
|
|
Schedule
2
Conditions
precedent to initial utilisation
(a) | A copy of the constitutional
documents of each Obligor. |
(b) | A copy of a resolution of the
board of directors of each Obligor: |
| (i) | approving
the terms of, and the transactions contemplated by, the Finance Documents to which it is
a party and resolving that it execute, deliver and perform the Finance Documents to which
it is a party; |
| (ii) | authorising
a specified person or persons to execute the Finance Documents to which it is a party on
its behalf; and |
| (iii) | authorising
a specified person or persons, on its behalf, to sign and/or despatch all documents and notices
(including, if relevant, any Utilisation Request) to be signed and/or despatched by it under
or in connection with the Finance Documents to which it is a party. |
(c) | A specimen of the signature
of each person authorised by the resolution referred to in paragraph (b) above. |
(d) | A certificate of each Obligor
(signed by a director or, in the case of the Guarantor only, by an executive officer) confirming
that borrowing or guaranteeing or securing, as appropriate, the Total Commitments would not
cause any borrowing, guaranteeing, security or similar limit binding on that Obligor to be
exceeded. |
(e) | A certificate of an authorised
signatory of the relevant Obligor certifying that each copy document relating to it specified
in this Schedule
2 is correct, complete and in full force and effect and has not been amended or superseded
as at a date no earlier than the date of this Agreement. |
(f) | In respect of the Company: |
| (i) | an
up-to-date extract from the Dutch trade register (handelsregister) relating to it
dated no earlier than five Business Days prior to the date of this Agreement; |
| (ii) | if
applicable, a copy of a resolution of its board of supervisory directors approving the execution
of, and the terms of, and the transactions contemplated by, the Finance Documents; |
| (iii) | if
applicable, evidence of positive advice of any works council which has jurisdiction over
the Company; and |
| (iv) | if
applicable, a completed form MR01 in respect of the English Security Agreement and a completed
CRO registration template in agreed form for the Irish Security Agreement. |
(g) | In respect of the Guarantor,
a certificate as to the existence and good standing (including verification of tax status,
if available) of the Guarantor from the appropriate governmental authorities in the Guarantor's
jurisdiction of organisation, in form and substance reasonably satisfactory to the Facility
Agent and its counsel. |
(h) | Evidence that the Company is
recognised as a Qualifying Central Counterparty by the DNB and the AFM under EMIR and the
Dutch Financial Supervision Act. |
(a) | A copy of each Security Document
duly executed by the Parties to it. |
(b) | An account control letter to
the Custodians, signed by the Company and acknowledged by each Custodian, each such letter
to be signed by the person to whom that letter was addressed, all as required by the Collateral
Monitoring Deed. |
(c) | A Collateral Schedule, in accordance
with Part I of Schedule 6 (Borrowing Base). |
(a) | An enforceability legal opinion
of Linklaters LLP, legal advisers to the Arrangers and the Facility Agent in England, substantially
in the form distributed to the Original Lenders prior to signing this Agreement. |
(b) | A capacity legal opinion of
Linklaters LLP, legal advisers to the Arrangers and the Facility Agent in the Netherlands,
substantially in the form distributed to the Original Lenders prior to signing this Agreement. |
(c) | An enforceability legal opinion
of Linklaters LLP, legal advisers to the Arrangers and the Facility Agent in Sweden, substantially
in the form distributed to the Original Lenders prior to signing this Agreement. |
(d) | An enforceability legal opinion
of Arthur Cox, legal advisers to the Arrangers, the Facility Agent and the Security Agent
in Ireland, substantially in the form distributed to the Original Lenders prior to signing
this Agreement. |
(e) | A capacity legal opinion of
Sidley Austin LLP, legal advisers to the Guarantor in the State of Delaware, substantially
in the form distributed to the Original Lenders prior to signing this Agreement. |
4. | Other documents and
evidence |
(a) | A certified copy of the Rules. |
(b) | A certified copy of the form
of Clearing Participant’s Agreement and security deed. |
(c) | Evidence that any process agent
referred to in Clause 44.2
(Service of process) has accepted its appointment. |
(d) | A copy of any other Authorisation
or other document, opinion or assurance which the Facility Agent, Security Agent or Lenders
consider to be reasonably necessary or desirable (if they have notified the Company accordingly
prior to the date of this Agreement) in connection with the entry into and performance of
the transactions contemplated by any Finance Document or for the validity and enforceability
of any Finance Document. |
(e) | The Original Financial Statements
of each Obligor. |
(f) | Evidence that the fees, costs
and expenses then due from the Company pursuant to Clause 13
(Fees) and Clause 18
(Costs and expenses) have been paid or will be paid at the times and in the manner
set out in Clause 13
(Fees) and Clause 18
(Costs and expenses) and the relevant Fee Letters (if applicable). |
(g) | Evidence in a form satisfactory
to the Facility Agent that the Company is a wholly owned subsidiary of the Guarantor. |
Schedule
3
Requests
Part I
Utilisation
Request – Revolving Loan
From: |
Cboe Clear Europe N.V. |
|
To: |
Bank of America Europe DAC as Facility Agent |
Copy: | Citibank N.A.,
London Branch as Security Agent |
Dated: [ ]
Cboe Clear Europe
N.V. – €1,250,000,000 Facility Agreement
originally dated 1 July 2020 as amended and/or restated from time to time (the "Agreement")
1. | We refer to the Agreement. This
is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation
Request unless given a different meaning in this Utilisation Request. |
2. | We wish to borrow a Revolving
Loan on the following terms: |
Proposed Utilisation Date: |
[ ]
(or, if that is not a Business Day, the next Business Day) |
|
|
Proposed Repayment Date: |
[ ] |
|
|
Facility to be Utilised: |
[Revolving Facility A]/[Revolving Facility B]/[Revolving Facility C]/[Revolving Facility D]/[Revolving
Facility E]/[Revolving Facility F]/[Revolving Facility G]/[Revolving Facility H]/[Revolving Facility I]/[Revolving Facility J] |
|
|
Currency of Loan: |
[ ] |
|
|
Amount: |
[ ]
or, if less, the Available Facility |
3. | In accordance with Part I
of Schedule 6 (Borrowing Base), we attach a Required Value Notice which [has been
sent/is being sent simultaneously with this notice] to the Collateral Monitor. |
4. | We confirm that each condition
specified in Clause 4.2
(Further conditions precedent) of the Agreement is satisfied on the date of this Utilisation
Request. |
5. | [This Loan is to be made in [whole]/[part]
for the purpose of refinancing [identify maturing Revolving Loan].]/[The proceeds
of this Loan should be credited to [account].] |
6. | This Utilisation Request is irrevocable. |
|
Yours faithfully |
|
|
|
|
|
|
|
|
authorised signatory for |
|
|
Cboe Clear Europe N.V. |
|
Part II
Utilisation
Request – Swingline Loan
From: |
Cboe Clear Europe N.V. |
|
To: |
[insert relevant Swingline Agent] |
Copy: | Bank of America
Europe DAC as Facility Agent and Citibank N.A., London Branch as Security Agent |
Dated: [ ]
Cboe Clear Europe
N.V. – €1,250,000,000 Facility Agreement
originally dated 1 July 2020 as amended and/or restated from time to time (the "Agreement")
1. | We refer to the Agreement. This
is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation
Request unless given a different meaning in this Utilisation Request. |
2. | We wish to borrow a [euro]/[sterling]/[U.S.
dollars]/[Danish Krone]/[Norwegian Krone]/[Swedish Krona]/[Swiss Francs] Swingline Loan on
the following terms: |
Proposed Utilisation Date: |
[ ]
(or, if that is not a Swingline Business Day, the next Swingline Business Day) |
|
|
Proposed Repayment Date: |
[ ]
(or, if that is not a Swingline Business Day, the previous Swingline Business Day)4 |
|
|
Facility to be utilised: |
[Swingline Facility A]/[Swingline Facility B]/[Swingline
Facility C]/[Swingline Facility D]/[Swingline Facility E]/[Swingline Facility F]/[Swingline Facility G]/[Swingline Facility H] /[Swingline
Facility I]/[Swingline Facility J] |
|
|
Currency of Loan: |
[euro]/[sterling]/[U.S. dollars]/[Danish Krone]/[Norwegian
Krone]/[Swedish Krona]/[Swiss Francs] |
|
|
Amount: |
[U.S.$]/[€]/[£]/[DKK]/[NOK]/[CHF]/[SEK]
[ ] or, if
less, the Available Facility |
3. | In accordance with Part I
of Schedule 6 (Borrowing Base), we attach a Required Value Notice which [has been
sent/is being sent simultaneously with this notice] to the Collateral Monitor. |
4. | We confirm that each condition
specified in Clause 6.4
(Lenders' participation in Swingline Loans) of the Agreement is satisfied on the date
of this Utilisation Request. |
5. | The proceeds of this Swingline
Loan should be credited to [account]. |
6. | This Utilisation Request is irrevocable. |
|
Yours faithfully |
|
|
|
|
|
|
|
|
authorised signatory for |
|
|
Cboe Clear Europe N.V. |
|
Schedule
4
Form of
Transfer Certificate1
To: |
Bank of America Europe DAC as Facility Agent |
|
From: |
[ ]
(the "Existing Lender") and [ ]
(the "New Lender") |
|
Dated: |
[ ] |
Cboe Clear Europe
N.V. – €1,250,000,000 Facility Agreement
originally dated 1 July 2020 as amended and/or restated from time to time (the "Agreement")
1. | We refer to the Agreement. This
is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer
Certificate unless given a different meaning in this Transfer Certificate. |
2. | We refer to Clause 26.6
(Procedure for transfer) of the Agreement: |
| (a) | The
Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender
by novation, and in accordance with Clause 26.6
(Procedure for transfer) of the Agreement, all of the Existing Lender’s rights
and obligations under the Agreement and the other Finance Documents which relate to that
portion of the Existing Lender’s Commitment(s) and participations in Loans under
the Agreement as specified in the Schedule. |
| (b) | The
proposed Transfer Date is [ ]. |
| (c) | The
Facility Office and address and attention details for notices of the New Lender for the purposes
of Clause 34.2
(Addresses) of the Agreement are set out in the Schedule. |
3. | The New Lender expressly acknowledges
the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause
26.5 (Limitation
of responsibility of Existing Lenders) of the Agreement. |
4. | The New Lender confirms, for
the benefit of the Facility Agent and each Swingline Agent and without liability to any Obligor,
that it is [a Qualifying Lender (other than a Treaty Lender)]. |
5. | The New Lender confirms that
its aggregate Commitments, as at the Transfer Date, do not exceed more than 25 per cent.
of the Total Commitments. |
6. | This Transfer Certificate may
be executed in any number of counterparts and this has the same effect as if the signatures
on the counterparts were on a single copy of this Transfer Certificate. |
7. | This Transfer Certificate and
any non-contractual obligations arising out of or in connection with it are governed by English
law. |
8. | This Transfer Certificate has
been entered into on the date stated at the beginning of this Transfer Certificate. |
1 The
Facility Agent and the Existing Lender should seek confirmation from Dutch counsel that the transfer will not contravene Section 3:5
of the Dutch Financial Supervision Act (Wet op het financieel toezicht) if the value of the rights acquired by the New Lender is less
than €100,000 or, if the competent authority has published its interpretation of the term "public" as referred to in article 4.1.(1)
of 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, such other minimum amount as may be required for the New Lender not to be considered part of the public under such
interpretation.
THE SCHEDULE
Commitment/rights
and obligations to be transferred
[insert relevant
details]
[Facility Office
address and attention details for notices and account details for payments.]
[Existing Lender] |
[New Lender] |
|
|
By: |
By: |
This Transfer Certificate is accepted
by the Facility Agent and the Transfer Date is confirmed as [ ].
Bank of America Europe DAC
By:
Schedule
5
Form of
Assignment Agreement2
To: | Bank of America Europe DAC as
Facility Agent and Cboe Clear Europe N.V. as Company, for and on behalf of each Obligor |
From: | [ ]
(the "Existing Lender") and [ ]
(the "New Lender") |
Cboe Clear Europe
N.V. – €1,250,000,000 Facility Agreement
originally dated 1 July 2020 as amended and/or restated from time to time (the "Agreement")
1. | We refer to the Agreement. This
is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this
Assignment Agreement unless given a different meaning in this Assignment Agreement. |
2. | We refer to Clause 26.7
(Procedure for assignment) of the Agreement: |
| (a) | The
Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender
under the Agreement and the other Finance Documents which relate to that portion of the Existing
Lender's Commitment(s) and participations in Loans under the Agreement as specified
in the Schedule. |
| (b) | The
Existing Lender is released from all the obligations of the Existing Lender which correspond
to that portion of the Existing Lender's Commitment(s) and participations in Loans under
the Agreement specified in the Schedule. |
| (c) | The
New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from
which the Existing Lender is released under paragraph (b) above.3 |
3. | The proposed Transfer Date is
[ ]. |
4. | On the Transfer Date the New
Lender becomes Party to the Finance Documents as a Lender. |
5. | The New Lender confirms that
its aggregate Commitments, as at the Transfer Date, do not exceed more than 25 per cent.
of the Total Commitments. |
6. | The Facility Office and address
and attention details for notices of the New Lender for the purposes of Clause 34.2
(Addresses) of the Agreement are set out in the Schedule. |
2 The
Facility Agent and the Existing Lender should seek confirmation from Dutch counsel that the transfer will not contravene Section 3:5
of the Dutch Financial Supervision Act (Wet op het financieel toezicht) if the value of the rights acquired by the New Lender is less
than €100,000 or, if the competent authority has published its interpretation of the term "public" as referred to in article 4.1.(1)
of the Capital Requirements Regulation (EU/575/2013), such other minimum amount as may be required for the New Lender not to be considered
part of the public under such interpretation.
3 If
the Assignment Agreement is used in place of a Transfer Certificate in order to avoid a novation of rights/obligations for reasons relevant
to a civil jurisdiction, local law advice should be sought to check the suitability of the Assignment Agreement due to the assumption
of obligations contained in paragraph 2(c). This issue should be addressed at primary documentation stage.
7. | The New Lender expressly acknowledges
the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause
26.5 (Limitation
of responsibility of Existing Lenders) of the Agreement. |
8. | The New Lender confirms, for
the benefit of the Facility Agent and each Swingline Agent and without liability to any Obligor,
that it is [a Qualifying Lender (other than a Treaty Lender)]. |
9. | This Assignment Agreement acts
as notice to the Facility Agent (on behalf of each Finance Party) and, upon delivery in accordance
with Clause 26.8
(Copy of Transfer Certificate, Assignment Agreement, Increase Confirmation
or Accordion Increase Confirmation to Company) of the Agreement, to the Company (on behalf
of each Obligor) of the assignment referred to in this Assignment Agreement. |
10. | This Assignment Agreement may
be executed in any number of counterparts and this has the same effect as if the signatures
on the counterparts were on a single copy of this Assignment Agreement. |
11. | This Assignment Agreement and
any non-contractual obligations arising out of or in connection with it are governed by English
law. |
12. | This Assignment Agreement has
been entered into on the date stated at the beginning of this Assignment Agreement. |
THE SCHEDULE
Rights to be assigned and obligations to be released and undertaken
[insert relevant
details]
[Facility office
address and attention details for notices and account details for payments.]
[Existing Lender] |
[New Lender] |
|
|
By: |
By: |
This Assignment Agreement is accepted
by the Facility Agent and the Transfer Date is confirmed as [ ].
Signature of this Assignment Agreement
by the Facility Agent constitutes confirmation by the Agent of receipt of notice of the assignment referred to herein, which notice the
Facility Agent receives on behalf of each Finance Party.
Bank of America Europe DAC
By:
Schedule
6
Borrowing
Base
Part I
(a) | The Company shall ensure: |
| (i) | that
the Outstanding Facility Amount does not at any time exceed the Collateral Value of the Eligible
Collateral comprising Collateral at that time; or |
| (ii) | if
at any time the Outstanding Facility Amount does exceed the Collateral Value of the Eligible
Collateral comprising Collateral at that time, that the Company makes the payments and/or
provides additional Collateral in accordance with and by the time required by paragraph 9
(Collateral shortfall) below. |
(b) | If the Company fails to comply
with paragraph (a) above, an Event of Default will occur, which shall be continuing
(and each Finance Party shall be entitled (without any duty of further enquiry) to treat
as continuing) unless and until: |
| (i) | the
Security Agent (with a copy to the Facility Agent and, if applicable, the relevant Swingline
Agent) receives a Collateral Report from the Collateral Monitor (prepared on the basis of
pricings not earlier than closing on the London Business Day before the date of receipt of
that Collateral Report) which confirms that the Collateral Value is equal to or more than
the Outstanding Facility Amount; or |
| (ii) | that
Event of Default is waived by the Majority Lenders. |
(a) | In order for any cash, securities
or other assets to comprise Collateral, they must: |
| (i) | be
Eligible Collateral; |
| (ii) | be
transferred to and held (in the case of cash) in the Collateral Cash Accounts or (in all
other cases) in the Collateral Securities Accounts; |
| (iii) | be
subject to the Security expressed to be created under the Transaction Security with the ranking
and priority it is expressed to have, in each case, to the satisfaction of the Security Agent; |
| (iv) | be
such that the representations in Clause 20.13 (Collateral) are, and would continue
to be, true in all material respects, if made by the Company upon inclusion of the relevant
cash, securities or other assets in the Collateral; and |
| (v) | not
be Interoperability Collateral. |
(b) | When providing Collateral, the
Company shall, to the extent reasonably practicable, provide Acceptable Bonds before providing
any Eligible Equities or Eligible ETFs. |
(c) | The Company may, but is not
required to, provide Collateral in the form of cash before providing Collateral in the form
of Acceptable Bonds or Eligible Equities or Eligible ETFs. |
(d) | The Company shall ensure that
no Interoperability Collateral is transferred to the Collateral Accounts or subject to the
Security in favour of the Secured Parties. If it becomes aware that any Interoperability
Collateral has been transferred to the Collateral Accounts: |
| (i) | the
Company must promptly notify the Security Agent; |
| (ii) | that
Interoperability Collateral shall be excluded from any calculations of the Collateral Value;
and |
| (iii) | the
Company shall instruct the Collateral Monitor and the relevant Custodians to transfer that
Interoperability Collateral out of the Collateral Accounts (and, provided no Default is continuing,
the Security Agent will consent to any such instruction on the basis of, and in reliance
upon, such notice from the Company). |
The Collateral Value at any
time of any Eligible Collateral shall be the amount determined by the Collateral Monitor to be the Collateral Value of that Eligible
Collateral at that time (such amount to take into account the Securities Discount and Currency Discounts referred to in paragraph 4 (Eligible
Collateral) below and the application of the Concentration Limit) under and in accordance with the Collateral Monitoring Deed.
(a) | Eligible Collateral shall be: |
| (i) | cash,
denominated in an Acceptable Currency; |
| (iii) | Eligible
Equities; and |
| (iv) | Eligible
ETFs, provided that (A) the Company has instructed the Collateral Monitor to build the
technological development necessary for the Collateral Monitor to accept Eligible ETFs as
Eligible Collateral and (B) the Collateral Monitor has given written notice to the Company
and the Facility Agent of the completion of that technological development. |
(b) | The Securities Discount (as
defined in the Collateral Monitoring Deed) in respect of any Eligible Securities shall be
the percentage specified for those Eligible Securities in Part II (Eligible Collateral,
Securities and Currency Discount), or, from the relevant effective date, such other percentage
(if any) as may be agreed by the Security Agent (acting on the instructions of the Facility
Agent, itself acting on the instructions of all Lenders) from time to time. The Currency
Discount (as defined in the Collateral Monitoring Deed) shall be, from the relevant effective
date, the percentage (if any) specified by the Security Agent (acting on the instructions
of the Facility Agent, itself acting on the instructions of all Lenders) at the time of agreeing
any additional currency as an Acceptable Currency or a currency in which Acceptable Bonds
may be denominated. |
For these purposes, the relevant
effective date shall be the date specified by the Collateral Monitor, following receipt of the proposed changes, to the Security Agent
in accordance with the Collateral Monitoring Deed.
(a) | The Company shall on the date
of this Agreement deliver to the Collateral Monitor and the Security Agent a Collateral Schedule
under and in accordance with the Collateral Monitoring Deed in the form distributed to the
Original Lenders and the Security Agent prior to signing this Agreement. |
(b) | The Company shall not deliver
any further Collateral Schedule to the Collateral Monitor, or amend, revoke or withdraw any
existing Collateral Schedule, except with the prior written consent of the Security Agent
(acting on instructions of the Facility Agent, itself acting on the instructions of all Lenders). |
6. | Required Value Notice
and CSV Collateral File |
(a) | Each time the Company requests
a Loan which will cause an increase in the Outstanding Facility Amount, the Company shall,
at the same time as or before delivery to the relevant Agent of the Utilisation Request for
that Loan, deliver to the Collateral Monitor (with a copy to the Facility Agent and the relevant
Agent and the Security Agent): |
| (i) | a
Required Value Notice setting the Required Value in the Base Currency at an amount not less
than the Outstanding Facility Amount (taking into account the Proposed Loan); and |
| (ii) | a
CSV Collateral File. |
(b) | At all times while there is
an Outstanding Facility Amount, the Company shall ensure that the Required Value for the
purposes of the Collateral Monitoring Deed is not at any time less than the Outstanding Facility
Amount. |
7. | Utilisation Date disbursement
procedures – Revolving Loans and Swingline Loans |
| (i) | the
Company has requested a Loan (the "Proposed Loan") in accordance with this
Agreement; and |
| (ii) | all
conditions under this Agreement to making that Loan have been met (other than the requirement
to ensure that the Collateral Value is equal to or exceeds the Outstanding Facility Amount
taking the Proposed Loan into account), |
then, subject to paragraph
(b) to (f) below, each Lender shall make its participation in the Proposed Loan available to the relevant Agent by no later
than the applicable Specified Time on the Utilisation Date of the Proposed Loan.
(b) | The Lenders will only be obliged
to make their participation in the Proposed Loan available to the relevant Agent if: (i) at
the applicable Specified Time on the Utilisation Date of a Proposed Loan the Collateral Monitor
delivers to the Security Agent (with a copy to the Facility Agent and, if applicable, the
relevant Swingline Agent) a Collateral Report prepared on the basis of pricings not earlier
than closing on the London Business Day before the Utilisation Date of the Proposed Loan
or (ii) where applicable, a revised Utilisation Request is received by the applicable
Specified Time on the Utilisation Date in an amount equal to or less than, when aggregated
with the Outstanding Facility Amount, the Collateral Value shown in the Collateral Report. |
(c) | The relevant Agent will not
make those Lenders' participations in the Proposed Loan available to the Company, except
in the circumstances described in paragraph (d) below. |
(d) | If a Collateral Report is delivered
pursuant to and in accordance with paragraph (b) above and that Collateral Report shows: |
| (i) | that
the Collateral Value at that time is equal to or greater than the Outstanding Facility Amount
(taking the Proposed Loan into account), then, subject to paragraph (f) below, the relevant
Agent shall, as soon as reasonably practicable, make available to the Company in full each
Lender's participation in the Proposed Loan received by that Agent; or |
| (ii) | that
the Collateral Value is less than the Outstanding Facility Amount after taking the Proposed
Loan into account, the relevant Agent shall request, other than in relation to a Revolving
Loan in Danish Krone, Norwegian Krone or Swedish Krona, that the Company deliver to the Facility
Agent and Security Agent (and if applicable, the relevant Swingline Agent) a new Utilisation
Request. If a new Utilisation Request is received by the relevant Agent prior to the applicable
Specified Time with a Proposed Loan equal to or less than, when aggregated with the Outstanding
Facility Amount, to the Collateral Value shown in the Collateral Report, that relevant Agent
shall advance the relevant funds received from the Lenders in an amount equal to the amount
specified in the new Utilisation Request. If a new Utilisation Request is not received by
that time, the Utilisation Request shall be treated as an entirely new request and the usual
time periods and conditions will apply. The Agent shall by close of business on that day
return to each Lender any part of that Lender's participation in a Proposed Loan not advanced.
In relation to any funds returned to a Lender, the Company shall indemnify each Lender under
Clause 16.2 (Other indemnities) in respect of the funding costs (including any Break
Costs) incurred by that Lender in making its participation (or the relevant part of it) available
to the relevant Agent in accordance with this paragraph 7. |
(e) | The relevant Agent shall only
make the Lenders' participations in the Proposed Loan available to the Company pursuant to
and in accordance with paragraph (d) above if Collateral in respect of which a Collateral
Report has been prepared, is deposited in the Collateral Account(s) by the Company on
or prior to the applicable Specified Time and, if the Collateral Value is less than the Outstanding
Facility Amount after taking the Proposed Loan into account, a new Utilisation Request, where
applicable, is delivered pursuant to, paragraph (d) above. |
(f) | If on the Utilisation Date: |
| (i) | the
Company has requested a Proposed Loan earlier than the applicable Specified Time; and |
| (ii) | all
conditions under this Agreement to making that Loan have been met, including receipt by the
Facility Agent, the relevant Swingline Agent, and the Security Agent of a Collateral Report
which shows that the Collateral Value is equal to or exceeds the Outstanding Facility Amount
taking the Proposed Loan into account, |
then each Lender may, following
a request by the Company (which shall be passed onto each Lender by the relevant Agent), make its participation in the Proposed Loan
available to the relevant Agent as soon as reasonably practicable instead of delaying until the applicable Specified Time on that Utilisation
Date. For the avoidance of doubt, this paragraph (f) is not intended to oblige any Lender to make its participations available earlier
than the applicable Specified Time.
(a) | Without limiting the requirements
of paragraph 7 (Utilisation Date disbursement procedures – Revolving Loans and Swingline
Loans) above, on any London Business Day on which there is an Outstanding Facility Amount,
the Company shall ensure that the Collateral Monitor delivers to the Facility Agent, the
relevant Swingline Agent and the Security Agent by no later than 10:00 a.m. (London
time) on that day, a Collateral Report compiled as of the close of business on the previous
London Business Day. |
(b) | If the Company or the Facility
Agent or the relevant Swingline Agent or Security Agent becomes aware that: |
| (i) | the
Collateral Report most recently delivered wrongly stated that the Collateral Value was equal
to or more than the Outstanding Facility Amount (including where the Company has failed to
notify the Collateral Monitor of the correct Required Value), when in fact the Collateral
Value was less than the Outstanding Facility Amount at the relevant time; or |
| (ii) | that
the Collateral Value is less than the Outstanding Facility Amount (in each case determined
at the time and in the manner described in the Collateral Monitoring Deed), |
the Company or the Facility
Agent or the relevant Swingline Agent or Security Agent (as the case may be) shall, as soon as reasonably practicable thereafter, notify
each of the other parties. For the avoidance of doubt, the Agents and the Security Agent are under no obligation to check that the Collateral
Value or the Required Value is correct.
(c) | If the Company fails to comply
with paragraph (a) above or receives a notice under paragraph (b) above, an Event
of Default will occur unless, by no later than 10:00 a.m. on the next London Business
Day following the day on which that failure occurred: |
| (i) | the
Facility Agent, relevant Swingline Agent and the Security Agent receives a Collateral Report
from the Collateral Monitor, which shows that the Collateral Value exceeds the Outstanding
Facility Amount; or |
| (ii) | the
Company demonstrates to the satisfaction of the Security Agent (acting on the instructions
of the Facility Agent, itself acting on the instructions of all the Lenders, acting reasonably)
that the Collateral Value is equal to or exceeds the Outstanding Facility Amount. |
(d) | The Facility Agent shall, by
no later than 12:00 noon on the Business Day immediately following receipt of a Collateral
Report, provide all Lenders with a copy of that Collateral Report. |
If, on any London Business
Day on which there is an Outstanding Facility Amount, the Collateral Monitor gives a Collateral Report to an Agent and the Security Agent
which shows that the Collateral Value is less than the Outstanding Facility Amount at that time (the amount of any such shortfall being
the "Collateral Shortfall Amount") or the Company, the Security Agent, the Facility Agent or the relevant Swingline
Agent gives a notice pursuant to paragraph 8(b) above that the Collateral Value is less than the Outstanding Facility Amount at
that time, the Company shall:
| (a) | by
no later than 1:30 p.m. (London time) on that day transfer additional Eligible Collateral
into the Collateral Account(s), and ensure that the Collateral Monitor (by no later than
3:00 p.m. (London time) on that day) gives a Collateral Report showing that the Collateral
Value is no longer less than the Outstanding Facility Amount at that time; or |
| (b) | by
no later than 3:00 p.m. (London time) on that day prepay Loan(s) in an aggregate
Base Currency Amount at least equal to the Collateral Shortfall Amount. |
For so long as any amount
is or may become outstanding under this Agreement or any Commitment is in force, the Company shall:
| (a) | enter
into and maintain the Custody Agreement and the Collateral Monitoring Deed with the Collateral
Monitor and the Custodians; |
| (b) | maintain
the Collateral Cash Accounts and the Collateral Securities Accounts with the Custodians,
and operate those Collateral Accounts in accordance with the Custody Agreement, the Collateral
Monitoring Deed and the Account Control Letter; |
| (c) | not
amend, terminate or grant any consent or waiver under the Custody Agreement or Collateral
Monitoring Deed where such amendment, consent or waiver would be material to this Agreement;
and |
| (d) | not
make any transfer (or give any instructions to make any transfer) of any cash, securities
or other assets from either of the Collateral Accounts, |
in each case, except in accordance
with paragraph 11 (Substitution of Collateral for cash), 12 (Release of excess Collateral with consent), 13 (Substitution
of Collateral for other assets with consent), 14 (Release on repayment of Loans), 15 (Cash Collateral) or 17 (Concentration
Limit) below, or otherwise with the prior written consent of the Security Agent (acting on instructions of the Facility Agent, itself
acting on the instructions of all Lenders).
11. | Substitution of Collateral
for cash |
(a) | The Company may give instructions
to the Collateral Monitor to instruct the relevant Custodians to transfer securities or other
assets (but not cash) from the Collateral Accounts if: |
| (i) | the
Company wishes to substitute Eligible Securities comprising Collateral for cash in order
to finance the repayment or prepayment of one or more Loans; |
| (ii) | the
amount of cash to be provided in substitution for those Eligible Securities is not less than
the amount which the Company could obtain on a sale of those Eligible Securities for cash
for their best value reasonably achievable in the ordinary course of trading and in accordance
with the Company's usual procedures and practices at that time; |
| (iii) | the
Eligible Securities will be transferred against payment of the amount determined in accordance
with paragraph (ii) above in full in cash into the Collateral Accounts; |
| (iv) | no
Default is continuing or would occur as a result of the transfer of those securities or other
assets; and |
| (v) | the
Collateral Value of the Eligible Collateral comprising Collateral, both before and after
the transfer of those securities and other assets, is and will be equal to or will exceed
the Outstanding Facility Amount at that time. |
(b) | The consent of the Security
Agent is not required for instructions given to the Custodians in accordance with paragraph
(a) above. |
12. | Release of excess
Collateral with consent |
(a) | The Company may (or may direct
the Collateral Monitor to) give instructions to the relevant Custodians to transfer securities
or other assets (but not cash) from the Collateral Securities Accounts if: |
| (i) | the
Collateral Value of the Eligible Collateral comprising Collateral, both before and immediately
after the transfer out of those securities and other assets, exceeds or will exceed the Outstanding
Facility Amount at that time; |
| (ii) | no
Collateral to be released is of a higher Category than any Collateral to remain in the Collateral
Securities Account(s); and |
| (iii) | no
Default is continuing or would occur as a result of the transfer of those securities or other
assets. |
(b) | The consent of the Security
Agent is required to any transfer in accordance with paragraph (a) above. |
13. | Substitution of Collateral
for other assets with consent |
(a) | The Company may (or may direct
the Collateral Monitor to) give instructions to the relevant Custodians to transfer securities
or other assets (but not cash) from the Collateral Securities Accounts if: |
| (i) | the
Company wishes to substitute Eligible Securities in the Collateral Securities Accounts (the
"Released Collateral") with other Eligible Securities (the "Replacement
Collateral"); |
| (ii) | prior
to the transfer of the Released Collateral from the Collateral Securities Accounts, it transfers
the Replacement Collateral into the Collateral Securities Accounts; |
| (iii) | the
amount of the Replacement Collateral is such that the aggregate Market Value (less the appropriate
Securities Discount) of the Replacement Collateral is not less than the aggregate Market
Value (less the appropriate Securities Discount) of the Released Collateral; |
| (iv) | the
Replacement Collateral consists of Eligible Securities which have a Category the same as
or higher than the Category of the Released Collateral; and |
| (v) | the
Collateral Value of the Eligible Collateral comprising Collateral, both before and after
the transfer of those securities and other assets, is and will be equal to or will exceed
the Outstanding Facility Amount at that time; and |
| (vi) | no
Default is continuing or would occur as a result of the transfer of those securities or other
assets. |
(b) | The consent of the Security
Agent is required to any transfer in accordance with paragraph (a) above. |
14. | Release on repayment
of Loans |
(a) | If there is no Outstanding Facility
Amount and no Loan has been requested the Company may give instructions to transfer all cash,
securities and other assets out of the Collateral Accounts. |
(b) | The consent of the Security
Agent is required to any transfer in accordance with paragraph (a) above. |
(c) | The Security Agent will consent
to such transfer if it has received confirmation from the Facility Agent that it is satisfied
that the Outstanding Facility Amount and all accrued interest, fees and other amounts then
outstanding have been paid in full, which confirmation shall include an instruction to the
Security Agent to give such consent. |
(a) | In relation to cash standing
to the credit of the Collateral Cash Accounts: |
| (i) | the
Company may instruct the relevant Custodians to exchange that cash from one currency to another
in accordance with that Custodian's usual practices and procedures but only to the extent
necessary to convert the cash into a currency in which an outstanding Loan is denominated
and in order to fund repayment or prepayment of that Loan; and |
| (ii) | the
Company may instruct the Collateral Monitor to instruct the Custodians to pay cash to the
relevant Agent, for application towards amounts outstanding under the Finance |
| | Documents provided no Default is continuing or would occur as
a result of the transfer of such cash. |
(b) | The consent of the Security
Agent is not required for instructions given in accordance with paragraph (a) above. |
16. | Authorisation to give
consent |
(a) | Subject to paragraph (b) below,
where the Security Agent's consent is required to any transfer or instruction as described
in paragraph 12 (Release of excess Collateral with consent), or 13 (Substitution
of Collateral for other assets with consent) (the "Release Provisions"),
the Security Agent may, and is hereby irrevocably authorised and instructed by each other
Finance Party to, give its consent provided no Default is continuing or would occur as a
result of any transfer and it has received confirmation from the Collateral Monitor that
the conditions of transfer (as set out in the Collateral Monitoring Deed) have been satisfied. |
(b) | The Majority Lenders (via the
Facility Agent) may, by notice to the Security Agent, withdraw the authorisation and instruction
set out in paragraph (a) above. |
(c) | If the Security Agent is requested
to consent to any transfer of any Eligible Securities or other Security Assets from the Collateral
Accounts, or any other release of Transaction Security (in each case, except as described
in paragraph (a) above or paragraph 17 (Concentration Limit)), it will not be
obliged to give that consent unless it is instructed to do so by the Facility Agent who will
give such instruction if it has the consent of all Lenders. |
(d) | The Security Agent may: |
| (i) | in
relation to any matter to do with whether the Collateral Value is equal to or greater than
the Outstanding Facility Amount, and whether the requirements set out in the Release Provisions
or set out under paragraphs 2(a)(i), (ii), (b) and (c) above or paragraph 17 (Concentration
Limit) below have been met, rely on the Collateral Monitor being required to check and
confirm such matters, such check and confirmation to be confirmed by the Collateral Monitor
to the Security Agent; |
| (ii) | in
relation to any matter to do with Interoperability Collateral or whether the requirements
set out under paragraphs 2(a)(iii) to (v) have been met, assume that no Interoperability
Collateral has been transferred to the Collateral Accounts and all conditions under paragraphs
2(a)(iii) to (v) have been met unless the Security Agent has received express notice
to the contrary from the Company or, in the case of paragraph 2(a)(iii), the Facility Agent; |
| (iii) | assume
no Default has occurred or is continuing or would occur as a result of any release, transfer
or substitution under this Schedule 6, unless the Security Agent has received express notice
to the contrary from the Facility Agent prior to acting on the relevant request for consent
to any such release, transfer or substitution; and |
| (iv) | assume
that any amount paid to the Finance Parties has been irrevocably paid, unless it considers
that there is a material risk that such a payment may be avoided or required to be refunded
or repaid (and is not just aware of the underlying circumstances giving rise to that result). |
(e) | No release under any of the
Release Provisions affects any of the obligations or liabilities of the Obligors under the
Finance Documents. |
(f) | The Security Agent will not
have any liability to any person as a result of giving any consent under the Release Provisions
or under paragraph 2 (Collateral) above or paragraph 17 (Concentration Limit)
below (except in the case of its fraud, gross negligence or wilful misconduct), including
(without limitation) arising as a result of any subsequent shortfall in Collateral or impact
on the Security created under the Security Documents. |
(a) | The Company shall use reasonable
endeavours to ensure that no Concentration Limit is exceeded with respect to any Eligible
Equities or Eligible ETFs included in the Collateral. |
(b) | If the Collateral provided by
the Company in respect of a Loan on or before the Utilisation Date for that Loan includes
Eligible Equities or Eligible ETFs where the relevant Concentration Limit in respect of those
Eligible Equities or Eligible EFTs is exceeded, the Eligible Equities or Elgibible ETFs (as
applicable) exceeding that Concentration Limit shall be deemed to have a value of zero for
purposes of the Collateral Value set out in the Collateral Report provided or to be provided
by the Collateral Monitor. The Lenders will (subject to all other terms and conditions of
this Agreement) remain obliged to make that Loan available notwithstanding that the relevant
Concentration Limit has been exceeded in relation to those Eligible Equities or Eligible
ETFs (as applicable) unless the Collateral Value is less than the Outstanding Facility Amount
(after taking the Proposed Loan into account), in which case the provisions of paragraph
7 (Utilisation Date disbursement procedures – Revolving Loans and Swingline Loans)
above shall apply. |
(c) | If the Collateral includes any
Eligible Equities or Eligible ETFs where the relevant Concentration Limit for those Eligible
Equities or Eligible ETFs (as applicable) is exceeded: |
| (i) | the
Company shall, promptly upon becoming aware that the relevant Concentration Limit is exceeded
for any Eligible Equities or Eligible ETFs (as applicable) in the Collateral, or upon notice
from the Facility Agent, the Security Agent or the Collateral Monitor that they consider
that that Concentration Limit is or may have been exceeded, give notice of that fact to each
relevant Agent and the Security Agent, including: |
| (A) | details
of the relevant Eligible Equities or Eligible ETFs (as applicable); |
| (B) | the
amount of the relevant Eligible Equities or Eligible ETFs (as applicable) in the Collateral
as a proportion to the Average Daily Traded Volume of such Eligible Equities or Eligible
ETFs (as applicable); |
| (C) | the
aggregate Market Value of the relevant Eligible Equities or Eligible ETFs (as applicable)
in the Collateral as a proportion of the Outstanding Facility Amount; and/or |
| (D) | in
relation to Eligible Equities only, the aggregate Market Value of the relevant Eligible Equities
in the Collateral as a proportion of the Market Capitalisation of such Eligible Equities. |
For the avoidance of doubt,
the Facility Agent and the Security Agent are under no obligation to check whether any Concentration Limit is exceeded.
| (A) | without
limiting the provisions of paragraph 7 (Utilisation Date disbursement procedures –
Revolving Loans and Swingline Loans) above, where those Eligible Equities or Eligible
ETFs (as applicable) were provided by the Company in respect of a Loan on or before the Utilisation
Date for that Loan, either provide additional |
| | Eligible Collateral as Collateral by 1:30 p.m., or repay or prepay the Loan(s) by 3:00 p.m., on
the London Business Day following the Utilisation Date for that Loan; or |
| | |
| (B) | in
any other case, either provide additional Eligible Collateral as Collateral by 1:30 p.m.,
or repay or prepay the Loan(s) by 3:00 p.m. on the London Business Day following
the day on which the Company became aware that the Concentration Limit is exceeded for those
Eligible Equities or Eligible ETFs (as applicable) included in the Collateral, |
in each case in a sufficient
amount to enable the Collateral Monitor to provide a Collateral Report and the Company to deliver a confirmation that on the basis described
in paragraph (d) below the Collateral Value is equal to or exceeds the Outstanding Facility Amount.
(d) | The Company shall ensure that,
by no later than 5:00 p.m. on the London Business Day on which it is required to provide
additional Collateral and/or repay or prepay Loan(s) in accordance with paragraph (c) above: |
| (i) | the
Collateral Monitor provides a Collateral Report which shows that the Collateral Value is
equal to or exceeds the Outstanding Facility Amount; and |
| (ii) | the
Company provides either: |
| (A) | a
confirmation that none of the Eligible Equities or the Eligible ETFs included in the calculation
of Collateral Value in that Collateral Report exceeds the relevant Concentration Limit for
those Eligible Equities or Eligible ETFs (as applicable); or |
| (B) | (if
Eligible Equities or Eligible ETFs are included in that calculation of Collateral Value which
exceed the relevant Concentration Limit for those Eligible Equities or Eligible ETFs (as
applicable)) a confirmation that, if calculated without taking into account any Eligible
Equities or Eligible ETFs to the extent they exceed the relevant Concentration Limit for
those Eligible Equities or Eligible ETFs (as applicable), the Collateral Value will continue
to be equal to or exceed the Outstanding Facility Amount, together with a description showing
(in reasonable detail) the deductions to be made from the Collateral Value (as stated by
the Collateral Monitor in the Collateral Report) on account of the Eligible Equities or Eligible
ETFs (as applicable) which exceed their Concentration Limit. |
(e) | An Event of Default will occur
if a Collateral Report and confirmation from the Company is not delivered in accordance with
paragraph (d) above and by the time required in that paragraph, unless, by that time,
the Company demonstrates to the satisfaction of the Security Agent (acting on the instructions
of the Facility Agent, itself acting on the instructions of all Lenders, acting reasonably)
that the Collateral Value (excluding any Eligible Equities or Eligible ETFs to the extent
they exceed the relevant Concentration Limit for those Eligible Equities or Eligible ETFs
(as applicable)) is equal to or more than the Outstanding Facility Amount. |
(f) | Where a Collateral Report has
been delivered in accordance with paragraph (d) above, the Company may instruct the
Custodians and Collateral Monitor to transfer out of the Collateral Accounts any Eligible
Equities or Eligible ETFs to the extent those Eligible Equities or Eligible ETFs (as applicable)
included in the Collateral exceed the relevant Concentration Limit, and provided no Default
is continuing or would occur as a result of the transfer of those Eligible Equities or Eligible
ETFs (as applicable) and the Collateral Value, after that transfer, will be equal to or will
exceed the Outstanding Facility Amount. On request by the Company, the Security Agent will
give to the Custodians and Collateral Monitor its consent to such a transfer provided no
Default is continuing or |
| would occur as a result of any transfer and it has received confirmation from the Collateral
Monitor that its conditions of transfer (as set out in the Collateral Monitoring Deed) have been
satisfied. |
18. | Replacement of the
Collateral Monitor or of a Custodian |
18.1 | If the Company, the Collateral
Monitor or a Custodian gives any notice under the Collateral Monitoring Deed or the Custody
Agreement of the resignation or termination of the appointment of the Collateral Monitor
or the Custodian, or of any termination of the Custody Agreement, and the consent or approval
of the Security Agent is required, the Security Agent will act on the instructions of the
Facility Agent, itself acting on the instructions of all Lenders in relation to the replacement,
resignation or termination of the Collateral Monitor, the Custodian, the Custody Agreement
or the Collateral Monitoring Deed (as the case may be) provided the conditions in paragraph
18.3 below are satisfied. |
18.2 | The resignation or termination
of the Collateral Monitor or a Custodian (as the case may be) shall only become effective
on (and will not become effective until) the appointment of a replacement collateral monitor
or custodian in accordance with this paragraph 18 and the Collateral Monitoring Deed or as
otherwise agreed by the Company and the Facility Agent (acting on the instructions of all
Lenders). |
18.3 | The appointment of a replacement
collateral monitor or custodian (as the case may be) shall only take effect if the Lenders
are satisfied: |
| (a) | as
to the creditworthiness and ability of the proposed new collateral monitor or custodian to
perform the functions of the Collateral Monitor or the Custodian (as the case may be); |
| (b) | that
the proposed new collateral monitor or custodian has or will become bound to perform the
duties and obligations of the Collateral Monitor or the Custodian on the same or substantially
similar terms to the Collateral Monitoring Deed or the Custody Agreement (as the case may
be); and |
| (c) | in
the case of the Custodian, that new accounts have been established to hold Collateral, security
taken in favour of the Lenders and any existing Collateral transferred to those accounts
and any consequential amendments made to the Finance Documents. |
18.4 | The Lenders will not unreasonably
withhold or delay any consent or approval required pursuant to this Clause 18. |
18.5 | The Company agrees that it
shall be obliged to cooperate and take all steps reasonably required to appoint the successor
collateral monitor or custodian (as the case may be). |
(a) | In this Schedule 6 and this
Agreement: |
"Acceptable Bonds"
means an approved Financial Instrument as set out in the Rules which:
| (A) | is
issued by any agency or the central bank or central government of Austria, Belgium, Denmark,
Finland, France, Germany, Italy, Norway, Spain, Sweden, Switzerland, the Netherlands,
the United States of America, Ireland or the United Kingdom; or |
| (B) | is
issued by a supranational issuer; and |
| (ii) | has
a minimum credit rating of A- from Fitch Ratings Ltd, A3 from Moody's Investors Services
Limited or A- from Standard & Poor's Rating Services. |
"Acceptable Currency"
means, at any time, euro, Danish Krone, Norwegian Krone, sterling, Swedish Krona, Swiss Francs, U.S. dollars, or such other currency
as may be approved by the Facility Agent acting on the instructions of all the Lenders.
"Account Control
Letter" has the meaning given in the Collateral Monitoring Deed.
"Average Daily Traded
Volume" means:
| (i) | the
average daily traded volume of the total number of shares of the relevant issuer on the relevant
Exchange; or |
| (ii) | if
requested by the Company and agreed to by the Collateral Monitor the relevant Exchanges for
which the Collateral Monitor receives the average daily traded volume for a particular security
as determined by the Collateral Monitor in its sole discretion from time to time ("Multi-Exchange
ADTV"), |
in each case:
| (A) | for
the preceding three Months (calculated on a rolling basis); or |
| (B) | if
three Months of data is unavailable, the longest period of data available, in each case as
determined by the Collateral Monitor by reference to a generally recognized pricing service,
or if such information is not available for whatever reason or is manifestly incorrect, as
determined by the Collateral Monitor acting in a commercially reasonable manner. |
The parties acknowledge and
agree that a Multi-Exchange ADTV will not be available as of the 2023 Amendment and Restatement Effective Date and shall only become
available after:
| (i) | an
agreement in writing between the Company and the Collateral Monitor on the terms and conditions
for the Collateral Monitor to undertake the technological development (the "Build")
necessary to provide a Multi-Exchange ADTV; and |
| (ii) | written
notification by the Collateral Monitor to the Company, the Facility Agent and the relevant
Swingline Agent that it has completed the Build. |
"Book Entry Securities"
means securities title to which is evidenced by entries in a register or account maintained by or on behalf of an intermediary (within
the meaning of The Financial Collateral Arrangements (No.2) Regulations 2003).
"Category"
means, in relation to a class of Eligible Collateral, the category specified for that class of Eligible Collateral in Part II (Eligible
Collateral, Securities and Currency Discount), with the lowest Category of Eligible Collateral being Category 3 and the highest Category
of Eligible Collateral being Category 1.
"Collateral Report"
has the meaning given in the Collateral Monitoring Deed.
"Collateral Schedule"
has the meaning given in the Collateral Monitoring Deed.
"Collateral Value"
means, in respect of any Eligible Collateral at any time, the amount determined in accordance with paragraph 3 (Collateral Value).
"Concentration Limit"
means, at any time:
| (i) | in
relation to any Eligible Equities included in the Collateral, that: |
| (a) | the
aggregate amount of that Eligible Equity does not exceed the Average Daily Traded Volume
x1 in respect of that Eligible Equity at that time; and/or |
| (b) | the
aggregate Market Value of that Eligible Equity does not exceed the lower of: |
| (A) | 5
per cent. of the Market Capitalisation of that Eligible Equity at that time; and |
| (B) | 5
per cent. of the Outstanding Facility Amount at that time. |
| (ii) | in
relation to any Eligible ETFs included in the Collateral, that: |
| (a) | the
aggregate amount of that Eligible ETF does not exceed the Average Daily Traded Volume x1
in respect of that Eligible ETF at that time; and/or |
| (b) | the
aggregate Market Value of that Eligible ETF does not exceed 5 per cent. of the Outstanding
Facility Amount at that time. |
"CSV Collateral File"
means a report prepared by the Company setting out the description of the Eligible Collateral including any ISIN number, CUSIP number
and ticker symbol (as applicable) and delivered by the Company in a .csv file in a format agreed to in advance by the Collateral Monitor
by secure file transfer protocol.
"Early Closure"
means the closure of the relevant Exchange on any Exchange Business Day prior to its regular scheduled closing time.
"Eligible Collateral"
means any cash, securities or other assets listed in paragraph 4(a).
"Eligible Equities"
means any Financial Instrument (other than Non-Eligible Equities) from time to time included in the list of financial instruments maintained
by the Company which is a listed equity traded on, via or by an Exchange in any of the following countries:
and which is eligible for
clearing as set out in the Rules.
“Eligible ETFs”
means any Financial Instrument (other than a Non-Eligible ETF) which is a share in an exchange traded fund which:
| (b) | has
been issued by any of the following issuers: |
| (i) | Blackrock
Financial Management; |
| (viii) | any
other issuer which is, in the opinion of the Company (acting reasonably), a leading fund
manager or investment bank, and is notified to the Collateral Monitor in writing; unless
the Facility Agent (acting on the instructions of the Majority Lenders) notifies the Company
and the Collateral Monitor of its objection to that issuer; and |
| (i) | the
equities market index for any Exchange in any of the following countries: |
| (O) | the
United Kingdom; or |
| (ii) | either
of the following multi-jurisdictional equities market indices: |
| (iii) | a
government bond market index covering government bonds issued by an agency or the central
bank or central government of any of the following countries: |
| (N) | the
United Kingdom; or |
| (O) | the
United States of America (in relation to bonds with a residual maturity of ten years or less), |
and which is eligible for
clearing as set out in the Rules.
"Eligible Securities"
means any securities or other assets listed in paragraph 4(a) other than cash.
"Exchange"
means any regulated market, multilateral trading or other trading venue as defined in the Rules.
"Exchange Business
Day" means any Scheduled Trading Day on which the relevant Exchange is open for trading for its regular trading sessions (notwithstanding
that Exchange closing prior to its scheduled weekday closing times and without regard to after hours or any other trading outside of
the regular trading session hours).
"Exchange Disruption"
means any event (other than an Early Closure) that disrupts or impairs (as determined by the Collateral Monitor) the ability of market
participants in general to effect transactions in, or obtain market values for, the relevant shares on the relevant Exchange.
"Financial Instrument"
has the meaning given to it in the Directive 2002/EC of 6 June 2002 on financial collateral arrangements.
"Interoperability
Collateral" means:
| (i) | any
cash, securities or other assets standing to the credit of the Interoperability Fund (as
defined in the Rules); or |
| (ii) | any
cash, securities or other assets credited, deposited or otherwise transferred to the Company
by a Co-operating Clearing House. |
"Margin Amount"
has the meaning given to the term "Margin" in the Rules.
"Market Capitalisation"
means, on any day, the product of A x B:
Where:
A = the total number of shares
in issue on that day; and
B =
the official closing price per share published by a generally recognised pricing source on that day or, if that day is not a Scheduled
Trading Day or if no official closing price is published on that day, the immediately preceding Exchange Business Day on which an official
closing price per share was published, provided that if no such price is published for the three immediately preceding Exchange Business
Days, shall be deemed to be zero.
"Market Value"
has the meaning given to it in the Collateral Monitoring Deed.
"Non-Eligible Equity"
means:
| (i) | shares
issued by any person with a Market Capitalisation of less than €1,000,000,000; |
| (ii) | shares
issued by any person (or any Affiliate of that person) recognised as a clearing participant
by a clearing house for the clearance or settlement of transactions in securities, in respect
of which clearing participant a clearing house has declared a default; and |
| (iii) | shares
issued by or on behalf of a Lender or an Affiliate of a Lender. |
“Non-Eligible ETF”
means a share in any exchange traded fund which:
| (i) | is
a leveraged or inverse fund; or |
| (ii) | references
(in whole or in part): |
| (a) | any
leveraged or short strategy investment; |
"Outstanding Facility
Amount" means, at any time, the aggregate of the Base Currency Amount of all Loans outstanding at that time.
"Required Value"
means, at any time, the Outstanding Facility Amount (taking into account, where applicable, any Proposed Loan).
"Required Value Notice"
has the meaning given in the Collateral Monitoring Deed.
"Scheduled Trading
Day" means any day on which the relevant Exchange is scheduled to be open for trading for its regular trading sessions.
"Trading Disruption"
means any suspension of or limitation imposed on trading by the relevant Exchange relating to the relevant shares whether by reason of
movements in price exceeding limits permitted by that Exchange or otherwise.
“UCITS”
has the meaning given to it in Directive 2009/65/EC of 13 July 2009 on the coordination of laws, regulations and administrative
provisions relating to undertakings for collective investment in transferable securities.
(b) | In this Schedule
6 and this Agreement, references to Eligible Equities, Eligible ETFs or Acceptable Bonds
include any Book Entry Securities representing or derived from such Eligible Equities, Eligible
ETFs or Acceptable Bonds. |
Part II
Eligible Collateral, Securities and Currency Discount
Category |
Eligible
Collateral |
Securities
and Currency
Discount |
1. |
Cash in
an Acceptable Currency |
0% |
2. |
Acceptable Bonds |
· 6%
for bonds with a residual maturity of less than 1 year
· 8%
for bonds with a residual maturity of 1 – 5 years
· 10%
for bonds with a residual maturity of 5 – 10 years
· 20%
for bonds with a residual maturity of more than 10 years |
3. |
Eligible Equities |
25% |
4. |
Eligible ETFs |
25% |
Schedule
7
Form of
Compliance Certificate
To: | Bank of America Europe DAC as
Facility Agent |
From: |
Cboe Clear Europe N.V. |
Cboe Clear Europe
N.V. – €1,250,000,000 Facility Agreement
originally dated 1 July 2020 as amended and/or restated from time to time (the "Agreement")
We refer to the Agreement. This is a
Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a
different meaning in this Compliance Certificate.
1. | [We confirm that as at the date
of this Compliance Certificate: |
1.1 | the minimum regulatory capital
requirement under EMIR for the Company is [ ]; |
1.2 | the Tangible Net Worth of the
Company is [ ], |
accordingly, we are in compliance
with paragraph (a) of Clause 23.18 (Tangible Net Worth and Guarantor Net Worth); and
1.3 | in accordance with Clause 23.17
(Minimum liquidity requirement), the financial resources of the Company is equal to
or in excess of those required under EMIR for Qualifying Central Counterparties.] |
2. | [We confirm that no Default is
continuing.]4* |
3. | [The Net Worth of the Guarantor
is [ ]
as at the date of this Compliance Certificate and therefore we confirm compliance with the
provisions of paragraph (b) of Clause 23.18 (Tangible Net Worth and Guarantor Net
Worth) and Clause 22.1 (Financial statements).] |
We confirm that this the financial statements
delivered by the Company pursuant to Clause 22.1 (Financial statements) fairly presents the Company’s (or, as the case may
be, its consolidated) financial condition as at the end of and for the period in relation to which those financial statements were drawn
up.
Signed:
Chief Executive Officer/Chief Operating
Officer/Chief Financial Officer/Treasurer/Assistant Treasurer of Cboe Clear Europe N.V. |
4 |
If this statement cannot be made, the certificate should identify any Default
that is continuing and the steps, if any, being taken to remedy it. |
Schedule
8
Timetables
Part I
Revolving
Loans
"U" = date of utilisation
"U - X" = Business Days prior
to date of utilisation
All times are London time, unless otherwise
stated.
|
Loans
in other currencies |
Currency
to be available and convertible into the Base Currency (Clause 4.3
(Conditions relating to Optional Currencies)) |
U-4
3:00 p.m. |
Agent
notifies the Company if a currency is approved as an Optional Currency in accordance with Clause 4.3
(Conditions relating to Optional Currencies) |
U-3
3:00 p.m. |
|
Loans
in euro |
Loans
in
sterling |
Loans
in U.S.
dollars |
Loans
in Swiss
Francs |
Loans
in Danish Krone
/ Norwegian Krone /
Swedish Krona |
Delivery
of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request for Revolving Loans)) |
U-2
2:00 p.m. |
U-1
2:00 p.m. |
U-2
2:00 p.m. |
U-2
2:00 p.m. |
U-2
2:00 p.m.
(Brussels time) |
Delivery
of a duly completed Required Value Notice (paragraph 6 (Required Value |
U-2
2:00 p.m. |
U-1
2:00 p.m. |
U-2
2:00 p.m. |
U-2
2:00 p.m. |
U-2
2:00 p.m.
(Brussels time) |
|
Loans
in euro |
Loans
in
sterling |
Loans
in U.S.
dollars |
Loans
in Swiss
Francs |
Loans
in Danish Krone
/ Norwegian Krone /
Swedish Krona |
Notice and CSV Collateral File) of Part I of
Schedule 6 (Borrowing Base)) |
|
|
|
|
|
Delivery
of a CSV Collateral File (paragraph 6 (Required Value Notice and CSV Collateral File) of Part I of Schedule 6 (Borrowing
Base)) |
U-2
2:00 p.m. |
U-1
2:00 p.m. |
U-2
2:00 p.m. |
U-2
2:00 p.m. |
U-2
2:00 p.m.
(Brussels time) |
Facility
Agent determines (in relation to a Utilisation) the Base Currency Amount of the Revolving Loan, if required under Clause 5.4 (Lenders'
participation in Revolving Loans) and notifies the Lenders of the Revolving Loan in accordance with Clause 5.4 (Lenders' participation
in Revolving Loans) |
U-2
5:00 p.m. |
U-1
5:00 p.m. |
U-2
5:00 p.m. |
U-2
5:00 p.m. |
U-2
5:00 p.m.
(Brussels time) |
Facility
Agent receives a notification from a Lender under Clause 7.2 (Unavailability of a currency) |
N/A |
9:30 a.m.
on the first day of the Interest Period for the relevant Loan. |
9:30 a.m.
on the day which is two Business Days before the first day of the Interest Period for the relevant Loan. |
9:30 a.m.
on the day which is two Business Days before the first day of the Interest Period for the relevant Loan. |
Quotation
Day
3:00 p.m.
(Brussels time) |
|
Loans
in euro |
Loans
in
sterling |
Loans
in U.S.
dollars |
Loans
in Swiss
Francs |
Loans
in Danish Krone
/ Norwegian Krone /
Swedish Krona |
Facility
Agent gives notice in accordance with Clause 7.2 (Unavailability of a currency) |
N/A |
5:30
p.m.
on the first day of the Interest Period for the relevant Loan. |
5:30
p.m.
on the day which is two Business Days before the first day of the Interest Period for the relevant Loan. |
5:30
p.m.
on the day which is two Business Days before the first day of the Interest Period for the relevant Loan. |
Quotation
Day
5:00 p.m.
(Brussels time) |
Security
Agent and the Facility Agent receives a Collateral Report showing the Collateral Value will be equal to or greater than the Outstanding
Facility Amount (taking into account the Proposed Loan) |
U
12:00 noon |
U
12:00 noon |
U
12:00 noon |
U
12:00 noon |
U
11:00 am
(Brussels time) |
Each
Lender to make its participation in a Proposed Loan available to the Facility Agent |
U
2:00 p.m. |
U
2:00 p.m. |
U
2:00 p.m. |
U
2:00 p.m. |
U
11:15 a.m.
(Brussels time) |
New
Utilisation Request to be delivered if Collateral Value is less than Outstanding Facility Amount (taking into account the Proposed Loan) |
U
2:00 p.m. |
U
2:00 p.m. |
U
2:00 p.m. |
U
2:00 p.m. |
N/A |
|
Loans
in euro |
Loans
in
sterling |
Loans
in U.S.
dollars |
Loans
in Swiss
Francs |
Loans
in Danish Krone
/ Norwegian Krone /
Swedish Krona |
Facility
Agent makes the Lenders' participation available to the Company if the Collateral Value is equal to or greater than the Outstanding Facility
Amount (taking into account the Proposed Loan) |
U
3:30 p.m. |
U
3:30 p.m. |
U
3:30 p.m. |
U
3:30 p.m. |
U
12:45 p.m.
(Brussels time) |
Facility
Agent notifies each Revolving Lender and the Company under Clause 10.7 (Notifications) |
Quotation
Day as of 12:00
noon
(Brussels
time) |
N/A |
N/A |
N/A |
Quotation
Day as of 12:00 noon
(Brussels time) |
Part II
Swingline
Loans
"U" = date of utilisation
"U - X" = Business Days prior
to date of utilisation
All times are London time, unless otherwise
stated.
|
Loans
in other currencies |
Currency
to be available and convertible into the Base Currency (Clause 4.3
(Conditions relating to Optional Currencies)) |
U-4
3:00 p.m. |
Agent
notifies the Company if a currency is approved as an Optional Currency in accordance with Clause 4.3
(Conditions relating to Optional Currencies) |
U-3
3:00 p.m. |
|
Loans
in
euro |
Loans
in
sterling |
Loans
in
U.S.
dollars |
Loans
in
Swiss Francs
pursuant to
Swingline
Facility D,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Swiss Francs
pursuant to
Swingline
Facility E,
Swingline
Facility F,
Swingline
Facility G
and
Swingline
Facility H |
Loans
in
Danish
Krone /
Norwegian
Krone
pursuant to
Swingline
Facility H,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Swedish
Krona
pursuant to
Swingline
Facility C,
Swingline
Facility H,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Danish
Krone /
Norwegian
Krone /
Swedish
Krona
pursuant to
Swingline
Facility F and
Swingline
Facility G |
Delivery
of a duly completed Utilisation Request (Clause 6.1 (Delivery of a Utilisation Request for Swingline Loans)) |
U
10:00 a.m. |
U
10:00 a.m. |
U
10:00 a.m.
(New York time) |
U
10.00 a.m. |
U-1
3:30 p.m. |
U
8:30 a.m. |
U
8:30 a.m. |
U-1
3:30 p.m. |
Delivery
of a duly completed Required Value Notice (paragraph 6 (Required Value Notice and CSV Collateral File) of Part I of Schedule
6 (Borrowing Base)) |
U
10:00 a.m. |
U
10:00 a.m. |
U
10:00 a.m. (New
York time) |
U
10.00 a.m. |
U-1
3:30
p.m. |
U
8:30 a.m. |
U
8:30 a.m. |
U-1
3:30 p.m. |
|
Loans
in
euro |
Loans
in
sterling |
Loans
in
U.S.
dollars |
Loans
in
Swiss Francs
pursuant to
Swingline
Facility D,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Swiss Francs
pursuant to
Swingline
Facility E,
Swingline
Facility F,
Swingline
Facility G
and
Swingline
Facility H |
Loans
in
Danish
Krone /
Norwegian
Krone
pursuant to
Swingline
Facility H,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Swedish
Krona
pursuant to
Swingline
Facility C,
Swingline
Facility H,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Danish
Krone /
Norwegian
Krone /
Swedish
Krona
pursuant to
Swingline
Facility F and
Swingline
Facility G |
Delivery
of a CSV Collateral File (paragraph 6 (Required Value Notice and CSV Collateral File) of Part I of Schedule 6 (Borrowing
Base)) |
U
10:00 a.m. |
U
10:00 a.m. |
U
10:00
a.m. (New
York time) |
U
10.00 a.m. |
U-1
3:30 p.m. |
U
8:30 a.m. |
U
8:30 a.m. |
U-1
3:30 p.m. |
Relevant
Swingline Agent determines (in relation to a Utilisation) the Base Currency Amount of the relevant Swingline Loan, if required under
Clause 6.4 (Lenders' |
U
11:30 a.m. |
U
11:30 a.m. |
U
11:30
a.m.
(New York
time) |
U
11.30 a.m. |
U-1
5:00 p.m. |
U
10:00 a.m. |
U
10:00 a.m. |
U-1
5:00 p.m. |
|
Loans
in
euro |
Loans
in
sterling |
Loans
in
U.S.
dollars |
Loans
in
Swiss Francs
pursuant to
Swingline
Facility D,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Swiss Francs
pursuant to
Swingline
Facility E,
Swingline
Facility F,
Swingline
Facility G
and
Swingline
Facility H |
Loans
in
Danish
Krone /
Norwegian
Krone
pursuant to
Swingline
Facility H,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Swedish
Krona
pursuant to
Swingline
Facility C,
Swingline
Facility H,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Danish
Krone /
Norwegian
Krone /
Swedish
Krona
pursuant to
Swingline
Facility F and
Swingline
Facility G |
participation
in Swingline Loans) and notifies the relevant Swingline Lenders of the amount of its participation in the Swingline Loan in accordance
with Clause 6.4 (Lenders' participation in Swingline Loans) |
|
|
|
|
|
|
|
|
Security
Agent (with a copy to the Facility Agent and each other relevant Swingline |
U
12:00
noon |
U
12:00 noon |
U
12:00
noon |
U
12:00 noon |
U
12:00 noon |
U
12:00 noon |
U
12:00 noon |
U
12:00 noon |
|
Loans
in
euro |
Loans
in
sterling |
Loans
in
U.S.
dollars |
Loans
in
Swiss Francs
pursuant to
Swingline
Facility D,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Swiss Francs
pursuant to
Swingline
Facility E,
Swingline
Facility F,
Swingline
Facility G
and
Swingline
Facility H |
Loans
in
Danish
Krone /
Norwegian
Krone
pursuant to
Swingline
Facility H,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Swedish
Krona
pursuant to
Swingline
Facility C,
Swingline
Facility H,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Danish
Krone /
Norwegian
Krone /
Swedish
Krona
pursuant to
Swingline
Facility F and
Swingline
Facility G |
Agent)
receives a Collateral Report showing the Collateral Value will be equal to or greater than the Outstanding Facility Amount (taking into
account the Proposed Loan) |
|
|
(New York time) |
|
|
|
|
|
Each
relevant Swingline Lender make its participation available to the relevant Agent |
U
1:00 p.m. |
U
1:00 p.m. |
U
1:00 p.m.
(New York time) |
U
1:00 p.m. |
U
1:00 p.m. |
U
1:00 p.m. |
U
1:00 p.m. |
U
1:00 p.m. |
|
Loans
in
euro |
Loans
in
sterling |
Loans
in
U.S.
dollars |
Loans
in
Swiss Francs
pursuant to
Swingline
Facility D,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Swiss Francs
pursuant to
Swingline
Facility E,
Swingline
Facility F,
Swingline
Facility G
and
Swingline
Facility H |
Loans
in
Danish
Krone /
Norwegian
Krone
pursuant to
Swingline
Facility H,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Swedish
Krona
pursuant to
Swingline
Facility C,
Swingline
Facility H,
Swingline
Facility I and
Swingline
Facility J |
Loans
in
Danish
Krone /
Norwegian
Krone /
Swedish
Krona
pursuant to
Swingline
Facility F and
Swingline
Facility G |
New
Utilisation Request to be delivered if Collateral Value is less than Outstanding Facility Amount (taking into account the Proposed Loan) |
U
2:00 p.m. |
U
2:00 p.m. |
U
2:00 p.m.
(New York time) |
U
2:00 p.m. |
U
2:00 p.m. |
U
1:00 p.m. |
U
1:00 p.m. |
U
2:00 p.m. |
The
relevant Swingline Agent makes each relevant Swingline Lenders' participation available to the Company if the Collateral Value is equal
to or greater than the |
U
2:30 p.m. |
U
2:30 p.m. |
U
5:30 p.m.
(New York time) |
U
2:30 p.m. |
U
2:30 p.m. |
U
2:00 p.m |
U
2:00 p.m. |
U
2:30 p.m. |
|
Loans in euro |
Loans in sterling |
Loans in U.S. dollars |
Loans in Swiss Francs pursuant to Swingline Facility D, Swingline Facility I and Swingline Facility J |
Loans in Swiss Francs pursuant to Swingline Facility E, Swingline Facility F, Swingline Facility G and Swingline Facility H |
Loans in Danish Krone / Norwegian Krone pursuant to Swingline Facility H, Swingline Facility I and Swingline Facility J |
Loans in Swedish Krona pursuant to Swingline Facility C, Swingline Facility H, Swingline Facility I and Swingline Facility J |
Loans in Danish Krone / Norwegian Krone / Swedish Krona pursuant to Swingline Facility F and Swingline Facility G |
Outstanding
Facility Amount (taking into account the Proposed Loan) |
|
|
|
|
|
|
|
|
Schedule
9
Form of
Increase Confirmation
To: | Bank of America Europe DAC as
Facility Agent, Citibank N.A., London Branch as Security Agent and Cboe Clear Europe N.V.
as Company, for and on behalf of each Obligor |
From: |
[the Increase Lender] (the "Increase Lender") |
Cboe Clear Europe
N.V. – €1,250,000,000 Facility Agreement
originally dated 1 July 2020 as amended and/or restated from time to time (the "Agreement")
1. | We refer to the Agreement. This
is an Increase Confirmation. Terms defined in the Agreement have the same meaning in this
Increase Confirmation unless given a different meaning in this Increase Confirmation. |
2. | We refer to Clause 2.2
(Increase) of the Agreement. |
3. | The Increase Lender agrees to
assume and will assume all of the obligations corresponding to the Commitments specified
in the Schedule (the "Relevant Commitments") as if it had been an Original
Lender under the Agreement in respect of the Relevant Commitments. |
4. | The proposed date on which the
increase in relation to the Increase Lender and the Relevant Commitments is to take effect
(the "Increase Date") is [ ]. |
5. | On the Increase Date, the Increase
Lender becomes party to the Finance Documents as a Lender. |
6. | The Facility Office and address
and attention details for notices to the Increase Lender for the purposes of Clause 34.2
(Addresses) of the Agreement are set out in the Schedule. |
7. | The Increase Lender expressly
acknowledges the limitations on the Lenders' obligations referred to in paragraph (g) of
Clause 2.2 (Increase)
of the Agreement. |
8. | This Increase Confirmation may
be executed in any number of counterparts and this has the same effect as if the signatures
on the counterparts were on a single copy of this Increase Confirmation. |
9. | This Increase Confirmation and
any non-contractual obligations arising out of or in connection with it are governed by English
law. |
10. | This Increase Confirmation has
been entered into on the date stated at the beginning of this Increase Confirmation. |
THE SCHEDULE
Relevant Commitment/rights and obligations to be assumed by the Increase Lender
[Insert relevant
details – including in respect of a Swingline Commitment]
[Facility office
address and attention details for notices and account details for payments]
[Increase Lender]
By:
This Increase Confirmation is accepted
as an Increase Confirmation for the purposes of the Agreement by the Facility Agent and the Increase Date is confirmed as [ ].
Schedule
10
Form of
Accordion Increase Request
From: | Cboe Clear Europe N.V.
Cboe Global Markets, Inc. |
To: | Bank of America Europe DAC as
Facility Agent |
Cboe Clear Europe
N.V. – €1,250,000,000 Facility Agreement
originally dated 1 July 2020 as amended and/or restated from time to time (the "Agreement")
1. | We refer to the Agreement. This
is an Accordion Increase Request. Terms defined in the Agreement have the same meaning in
this Accordion Increase Request unless given a different meaning in this Accordion Increase
Request. |
2. | We wish to request an increase
of the Total Revolving Facility Commitments on the following terms: |
|
Specify Facility/Facilities: [ ] |
|
Proposed Accordion Increase Date: [ ]
(or, if that is not a Business Day, the next Business Day) |
|
Accordion Increase Amount: [ ] |
|
Total Commitments following increase: [ ] |
| 3. | The
Accordion Increase Amount will be met by [the following existing Lenders increasing their
Commitments in the amounts set out below] [and ][the following Accordion Increase Lenders
acceding to the Agreement in respect of the relevant Commitments set out below: |
Lender or
Accordion
Increase Lender |
Current Revolving
Facility
[A/B/C/D/E/F/G/H/I/J]
Commitment
(if applicable) |
Revolving
Facility
Commitment
[A/B/C/D/E/F/G/H/I/J]
following increase |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
Lender or
Accordion
Increase Lender |
Current Swingline
[A/B/[C/D/E/F/G/H/I/J]
Facility Commitment
(if applicable) |
Swingline
[A/B/C/D/E/F/G/H/I/J]
Commitment following
increase |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
[ ] |
4. | This Accordion Increase Request
is irrevocable. |
Yours faithfully
authorised signatory
for Cboe Clear Europe N.V.
Yours faithfully
authorised signatory
for Cboe Global Markets, Inc.
Schedule
11
Form of
Accordion Increase Confirmation
To: | Bank of America Europe DAC as
Facility Agent |
Cboe Clear Europe N.V. as
Company and
Cboe Global Markets, Inc.
as Guarantor
From: |
[ ]
(the "Accordion Increase Lender") |
Cboe Clear Europe
N.V. – €1,250,000,000 Facility Agreement
originally dated 1 July 2020 as amended and/or restated from time to time (the "Agreement")
1. | We
refer to the Agreement. This is an Accordion Increase Confirmation. Terms defined in the
Agreement have the same meaning in this Accordion Increase Confirmation unless given a different
meaning in this Accordion Increase Confirmation. |
2. | We
refer to Clause 2.3 (Increase – Accordion Option) of the Agreement. |
3. | The
Accordion Increase Lender agrees to assume and will assume all of the obligations corresponding
to the Commitment specified in the Schedule (the "Relevant Commitment")
as if it was an Original Lender under the Agreement. |
4. | The
proposed date on which the increase in relation to the Accordion Increase Lender and the
Relevant Commitment is to take effect is [ ]. |
5. | On
the Accordion Increase Date, the Accordion Increase Lender becomes a Party to the Finance
Documents as a "Lender". |
6. | The
Facility Office and address and attention details for notices to the Accordion Increase Lender
for the purposes of Clause 34.2 (Addresses) of the Agreement are set out in the Schedule
hereto. |
7. | The
Accordion Increase Lender expressly acknowledges the limitations on the Lenders' obligations
referred to in paragraph (k) of Clause 2.3 (Increase – Accordion Option)
of the Agreement. |
8. | The
Accordion Increase Lender confirms, for the benefit of the Facility Agent and each Swingline
Agent and without liability to any Obligor, that it is [a Qualifying Lender (other than a
Treaty Lender)]. |
9. | This
Accordion Increase Confirmation may be executed in any number of counterparts and this has
the same effect as if the signatures on the counterparts were on a single copy of this Accordion
Increase Confirmation. |
10. | This
Accordion Increase Confirmation and any non-contractual obligations arising out of or in
connection with it are governed by English law. |
11. | This
Accordion Increase Confirmation has been entered into on the date stated at the beginning
of this Accordion Increase Confirmation. |
Note: The execution of this Accordion
Increase Confirmation may not be sufficient for the Accordion Increase Lender to obtain the benefit of guarantees and security provided
in respect of the Agreement in all jurisdictions. It is the responsibility of the Accordion Increase Lender to ascertain whether any
other
documents or other formalities are required to obtain the benefit of any security/guarantees in any jurisdiction and, if so, to
arrange for execution of those documents and completion of those formalities.
THE SCHEDULE
Relevant Commitment/rights
and obligations to be assumed by the Accordion Increase Lender
[Insert relevant
details – including in respect of a Swingline Commitment]
[Facility
Office address and attention details for notices and account details for payments]
[Accordion Increase Lender]
By:
This Accordion Increase Confirmation
is accepted as an Accordion Increase Confirmation for the purposes of the Agreement by the Facility Agent and the Accordion Increase
Date is confirmed as [ ].
Facility Agent
By:
Schedule
12
Designated Entities
Part I
List of Designated Entities
Name
of Appointing Lender |
Designated
Entity |
Jurisdiction/Currency
in relation to
which the Designated Entity will
participate in Loans |
Bank
of America Europe DAC |
Bank
of America, N.A. |
USD
(in relation to Swingline Facility J only) |
Citibank, N.A., London Branch
|
Citibank,
N.A. |
USD
(in relation to Swingline Facility J only) |
Part II
Form of Designated Entity Accession Agreement
To: | Bank of America Europe DAC as
Facility Agent |
From: | [Designated Entity] and [Appointing
Lender] |
Cboe Clear Europe
N.V. – €1,250,000,000 Facility Agreement
originally dated 1 July 2020 as amended and/or restated from time to time (the "Agreement")
| 1. | Words and expressions defined in the Agreement
have the same meaning in this Designated Entity Accession Agreement. |
| 2. | We refer to Clause 2.5 (Designated
Entities) of the Agreement. This is a Designated Entity Accession Agreement. |
| 3. | The Appointing Lender designates the Designated
Entity as its Facility Office for the purposes of participating in Loans to the Company in
[currency]. |
| 4. | [Name of Designated Entity] agrees to
become a party to and to be bound by the terms of the Agreement as a Designated Entity. |
| 5. | For the purposes of Clause 34 (Notices)
of the Agreement, the Designated Entity's address for notices is: |
[ ]
| 6. | This Designated Entity Accession Agreement
and any non-contractual obligations arising in connection with it are governed by English
law. |
[Designated Entity]
By:
[Appointing Lender]
By:
Bank of America Europe DAC
Schedule
13
Term Rate Terms
Part I
CIBOR
– Copenhagen Interbank Offered Rate
CIBOR Currency
CURRENCY: |
Danish Krone.
|
Revolving Loan RFR Rate as
a fallback
Revolving Loan RFR Rate will not
apply as a fallback. |
|
|
|
Cost of funds as a fallback |
|
|
|
Cost of funds will apply as a fallback |
|
Definitions |
|
|
|
Alternative Term Rate: |
None specified. |
|
|
Alternative Term Rate Adjustment: |
None specified. |
|
|
Business Day / Swingline Business Day: |
Any day on which banks are
open for general business in Copenhagen. |
|
|
Business Day Conventions (definition of "Month"
and Clause 11.3 (Non-Business Days)): |
(a) If any period
is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period: |
|
|
|
(i) if the numerically
corresponding day is not a Business Day, that period shall end on the next Business Day or Swingline Business Day (as applicable)
in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business
Day or Swingline Business Day (as applicable); and |
|
|
|
(ii) if
there is no numerically corresponding day in the calendar month in which that period is to end, that period shall |
|
end on the last Business Day
or Swingline Business Day (as applicable) in that calendar month. |
|
|
|
(b) If
an Interest Period would otherwise end on a day which is not a Business Day or Swingline Business Day (as applicable), that Interest
Period will instead end on the next Business Day or Swingline Business Day (as applicable) in that calendar month (if there is one)
or the preceding Business Day or Swingline Business Day (as applicable) (if there is not). |
|
|
Fallback Interest Period: |
1 week |
|
|
Quotation Day: |
Two Business Days or Swingline
Business Days (as applicable) before the first day of that period (unless market practice differs in the Relevant Market, in which
case the Quotation Day 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)). |
|
|
Quotation Time: |
In respect of the Primary
Term Rate and the Swingline Rate, Quotation Day 11:00 a.m. (Brussels time). |
|
|
Relevant Market: |
The Danish interbank market. |
|
|
Primary Term Rate: |
In relation to CIBOR, the Copenhagen
interbank offered rate administered by the Danish Bankers' Association (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 the Refinitiv
screen. If such service ceases to be available, the Facility Agent may specify another service, displaying the relevant rate after consultation
with the Company and the relevant Revolving Facility C Lenders, the Revolving Facility G Lender, the relevant |
|
|
|
Swingline Facility C Lenders,and
the Swingline Facility G Lender. |
|
|
Rate fixing timings |
1 week. |
|
|
Market Disruption Rate: |
The applicable Revolving
Loan Term Rate. |
|
|
Deadline for Lenders to report market disruption
(Clause 12.2 (Market disruption – Revolving Loans)): |
Close of
business in Copenhagen on the Quotation Day for the relevant Interest Period. |
Part II
NIBOR
– Norwegian Interbank Offered Rate
NIBOR Currency
CURRENCY: |
Norwegian Krone. |
|
|
Revolving Loan RFR Rate as
a fallback
Revolving Loan RFR Rate will not
apply as a fallback. |
|
|
|
Cost of funds as a fallback |
|
|
|
Cost of funds will apply as a fallback |
|
|
|
Definitions |
|
|
|
Alternative Term Rate: |
None specified. |
|
|
Alternative Term Rate Adjustment: |
None specified. |
|
|
Business Day / Swingline Business Day: |
Any day on which banks are
open for general business in Norway. |
|
|
Business Day Conventions (definition of "Month"
and Clause 11.3 (Non-Business Days)): |
(a) If
any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period: |
|
|
|
(i) if the numerically
corresponding day is not a Business Day or Swingline Business Day (as applicable), that period shall end on the next Business Day
or Swingline Business Day (as applicable) in that calendar month in which that period is to end if there is one, or if there is not,
on the immediately preceding Business Day or Swingline Business Day (as applicable); and |
|
|
|
(ii) if
there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business
Day or Swingline Business Day (as |
|
|
|
applicable) in that calendar month. |
|
|
|
(b) If
an Interest Period would otherwise end on a day which is not a Business Day or Swingline Business Day (as applicable), that Interest
Period will instead end on the next Business Day or Swingline Business Day (as applicable) in that calendar month (if there is one)
or the preceding Business Day or Swingline Business Day (as applicable) (if there is not). |
|
|
Fallback Interest Period: |
1 week |
|
|
Quotation Day: |
Two Business Days or Swingline
Business Days (as applicable) before the first day of that period (unless market practice differs in the Relevant Market, in which
case the Quotation Day 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)). |
|
|
Quotation Time: |
In respect of the Primary
Term Rate and the Swingline Rate, Quotation Day 12:00 (Brussels time). |
|
|
Relevant Market: |
The Norwegian interbank market. |
|
|
Primary Term Rate: |
In relation to NIBOR, the
Norwegian interbank offered rate administered by Finansielle Referanser AS (NoRe) (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 the
Refinitiv screen; If such service ceases to be available, the Facility Agent may specify another service, displaying the relevant
rate after consultation with the Company, the relevant Revolving Facility C Lenders, the Revolving Facility G Lender, the Swingline
Facility C Lenders and the Swingline Facility G Lender. |
|
|
Rate fixing timings |
1 week. |
|
|
Market Disruption Rate: |
The applicable Revolving
Loan Term Rate. |
|
|
Deadline for Lenders to report market disruption
(Clause 12.2 (Market disruption – Revolving Loans)): |
Close of business in Oslo
on the Quotation Day for the relevant Interest Period. |
Part III
STIBOR
– Stockholm Interbank Offered Rate
STIBOR Currency
CURRENCY: |
Swedish Krona. |
|
|
Revolving Loan RFR Rate as a fallback
Revolving Loan RFR Rate will not apply as a fallback. |
|
|
|
Cost of funds as a fallback |
|
|
|
Cost of funds will apply as a fallback |
|
|
|
Definitions |
|
|
|
Alternative Term Rate: |
None specified. |
|
|
Alternative Term Rate Adjustment: |
None specified. |
|
|
Business Day/Swingline Business Day: |
Any day on which banks are open for general business in Stockholm. |
|
|
Business Day Conventions (definition of "Month" and Clause 11.3 (Non-Business Days)): |
No rules specified. |
|
|
Fallback Interest Period: |
1 week |
|
|
Quotation Day: |
Two Business Days or Swingline Business Days (as applicable) before the first day of that period (unless market practice differs in the Relevant Market, in which case the Quotation Day will be determined by the 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)). |
|
|
Relevant Market: |
The Swedish interbank market. |
|
|
Quotation Time |
In respect of the Primary Term Rate and the Swingline Rate, Quotation Day 11:00 a.m. (Brussels time). |
|
|
Primary Term Rate: |
In relation to STIBOR, the Stockholm interbank offered rate administered by Swedish Financial Benchmark Facility AB (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 the Refinitiv screen. If |
|
|
|
such service ceases to be available, the Agent may specify another service, displaying the relevant rate after consultation with the Company, the relevant Revolving Facility C Lenders, the Revolving Facility F Lender, the Revolving Facility G Lender, the Swingline Facility C Lenders, the Swingline Facility F Lender and the Swingline Facility G Lender. |
|
|
Rate fixing timings |
U-2 |
|
|
Market Disruption Rate: |
The applicable Revolving Loan Term Rate. |
|
|
Deadline for Lenders to report market disruption (Clause 12.2 (Market disruption – Revolving Loans)): |
Close of business in Stockholm on the Quotation Day for the relevant Interest Period. |
Part IV
Euro
(Revolving Loans)
Revolving Loan RFR Rate as a fallback
Revolving
Loan RFR Rate will not apply as a fallback.
Cost of funds as a fallback |
|
|
|
Cost of funds will apply as a fallback. |
|
Definitions |
|
|
|
Additional Business Days: |
A TARGET Day. |
|
|
Alternative Term Rate: |
None specified. |
|
|
Alternative Term Rate Adjustment: |
None specified. |
|
|
Business Day Conventions (definition of "Month" and Clause 11.3 (Non-Business Days)): |
(a) If
any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
(i) subject to paragraph
(iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that
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 shall 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 shall end on the last Business Day in the calendar month in which
that Interest Period is to end. |
|
|
|
(b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not). |
|
|
Fallback Interest Period: |
Five Business Days |
|
|
Market Disruption Rate: |
The applicable Revolving Loan Term Rate. |
|
|
Primary Term Rate: |
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 Refinitiv screen,
provided that if that rate is less than zero, it shall be deemed to be zero. |
|
|
Quotation Day: |
Two TARGET Days before the first day of the relevant
Interest Period (unless market practice differs in the Relevant Market, in which case the Quotation Day 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)). |
|
|
Quotation Time: |
Quotation Day 11:00 a.m. (Brussels time). |
|
|
Relevant Market: |
The European interbank market. |
|
|
Deadline for Lenders to report market disruption
in accordance with Clause 12.2 (Market disruption- Revolving Loans): |
Close of business in London on the Quotation
Day for the relevant Loan. |
Schedule
14
RFR
Terms
Part I
Sterling
CURRENCY: |
Sterling. |
|
|
Cost of funds as a fallback |
|
Cost of funds will not apply as a fallback. |
|
Definitions |
|
|
|
Additional Business Days: |
An RFR Banking Day. |
|
|
Applicable Rate Floor: |
Zero. |
|
|
Credit Adjustment Spread: |
None specified |
|
|
Break Costs: |
None specified. |
|
|
Business Day Conventions (definition of "Month"
and Clause 11.3 (Non-Business Days)): |
(a) If
any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period: |
|
(i) subject
to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business
Day or Swingline Business Day (as applicable) in that calendar month in which that period is to end if there is one, or if there is not,
on the immediately preceding Business Day or Swingline Business Day (as applicable);
(ii) if
there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business
Day or Swingline Business Day (as applicable) in that calendar month; and
(iii) if
an Interest Period begins on the last Business Day or Swingline Business Day (as applicable) of a calendar month, that Interest Period
shall end on the last Business Day or Swingline Business Day (as applicable) in the calendar month in which that Interest Period is to
end. |
|
|
|
(b) If an Interest Period would otherwise end on a day which is not a Business Day or Swingline Business Day (as applicable), |
|
that Interest Period will
instead end on the next Business Day or Swingline Business Day (as applicable) in that calendar month (if there is one) or the preceding
Business Day or Swingline Business Day (as applicable) (if there is not). |
|
|
Central Bank Rate: |
The Bank of England's Bank Rate as published
by the Bank of England from time to time. |
|
|
Central Bank Rate Adjustment: |
In relation to the Central Bank
Rate prevailing at close of business on any RFR Banking Day, the 20 per cent. trimmed arithmetic mean (calculated by the Facility
Agent, or by any other Finance Party which agrees to do so in place of the Facility Agent) of the Central Bank Rate Spreads for the
five most immediately preceding RFR Banking Days for which the RFR is available.
For this purpose, "Central
Bank Rate Spread" means, in relation to any RFR Banking Day, the difference (expressed as a percentage rate per annum) calculated
by the Facility Agent (or by any other Finance Party which agrees to do so in place of the Facility Agent) between:
(a) the
RFR for that RFR Banking Day; and
(b) the
Central Bank Rate prevailing at close of business on that RFR Banking Day. |
|
|
Daily Rate: |
The "Daily Rate"
for any RFR Banking Day is:
(a) the
RFR for that RFR Banking Day; or
(b) if
the RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of:
(i) the
Central Bank Rate for that RFR Banking Day; and
(ii) the
applicable Central Bank Rate Adjustment; or
(c) if
paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which
is the aggregate of:
(i) the
most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and
(ii) the
applicable Central Bank Rate Adjustment,
rounded, in each case, to four decimal
places (with 0.00005 being rounded upwards) and if, in each case, that rate or, in relation to an RFR Revolving Loan, the aggregate
of that rate and the applicable Credit Adjustment Spread, is less than the Applicable Rate Floor, the Daily Rate shall be deemed
to be the Applicable |
|
|
|
Rate Floor or, in relation to an RFR Revolving Loan, such a rate that the aggregate of the Daily Rate and the
applicable Credit Adjustment Spread is the Applicable Rate Floor. |
|
|
Lookback Period: |
Five RFR Banking Days. |
|
|
Market Disruption Rate: |
None specified. |
|
|
Relevant Market: |
The sterling wholesale market. |
|
|
Reporting Day: |
Not applicable. |
|
|
RFR: |
The SONIA (sterling overnight index average)
reference rate displayed on the relevant screen of any authorised distributor of that reference rate. |
|
|
RFR Banking Day: |
A day (other than a Saturday or Sunday) on which
banks are open for general business in London. |
|
|
Reporting Times |
Not applicable. |
Part II
Dollar
(Revolving Loan)
CURRENCY: |
Dollars. |
|
|
Cost of funds as a fallback |
|
Cost of funds will not apply as a fallback. |
|
Definitions |
|
|
|
Additional Business Days: |
An RFR Banking Day. |
|
|
Applicable Rate Floor: |
Zero. |
|
|
Credit Adjustment Spread: |
0.10 per cent. per annum. |
|
|
Break Costs: |
None specified. |
|
|
Business Day Conventions (definition of “Month” and Clause 11.3 (Non-Business Days)): |
(a) If
any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
(i) subject
to paragraph (iii) below, if the numerically corresponding day is not a Business Day, that period shall end on the next Business
Day in that 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 shall 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 shall end on the last Business Day in the calendar month in which that Interest Period is to end. |
|
|
|
(b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not). |
|
|
Central Bank Rate: |
(a) The
short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from
time to time; or
(b) if
that target is not a single figure, the arithmetic mean of: |
|
(i) the
upper bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve
Bank of New York; and |
|
|
|
(ii) the
lower bound of that target range. |
|
|
Central Bank Rate Adjustment: |
In relation to the Central Bank Rate prevailing at close of business
on any RFR Banking Day, the 20 per cent. trimmed arithmetic mean (calculated by the Facility Agent, or by any other Finance Party which
agrees to do so in place of the Facility Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days
for which the RFR is available.
For this purpose, “Central Bank Rate Spread” means,
in relation to any RFR Banking Day, the difference (expressed as a percentage rate per annum) calculated by the Facility Agent (or by
any other Finance Party which agrees to do so in place of the Facility Agent) between:
(a) the
RFR for that RFR Banking Day; and
(b) the
Central Bank Rate prevailing at close of business on that RFR Banking Day. |
|
|
Daily Rate: |
The “Daily Rate” for any RFR Banking Day is:
(a) the
RFR for that RFR Banking Day; or
(b) if
the RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of:
(i) the
Central Bank Rate for that RFR Banking Day; and
(ii) the
applicable Central Bank Rate Adjustment; or
(c) if
paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which
is the aggregate of:
(i) the
most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and
(ii) the
applicable Central Bank Rate Adjustment,
rounded, in each case, to five decimal places (with 0.000005 being
rounded upwards) and if, in each case, that rate or, in relation to an RFR Revolving Loan, the aggregate of that rate and the applicable
Credit Adjustment Spread is less than the Applicable Rate Floor, the Daily Rate shall be deemed to be the Applicable Rate Floor or, in
relation to an RFR Revolving Loan, such a rate that |
|
the aggregate of the Daily Rate and the applicable Credit Adjustment Spread is the
Applicable Rate Floor. |
|
|
Lookback Period: |
Five RFR Banking Days. |
|
|
Market Disruption Rate: |
None specified. |
|
|
Relevant Market: |
The market for overnight cash borrowing collateralised by US Government Securities. |
|
|
Reporting Day: |
Not applicable. |
|
|
RFR: |
The secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate). |
|
|
RFR Banking Day: |
Any day other than:
(a) a
Saturday or Sunday; and
(b) a
day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income
departments of its members be closed for the entire day for purposes of trading in US Government securities. |
|
|
Reporting Times: |
Not applicable. |
Part III
Swiss
Francs
CURRENCY: |
Swiss francs. |
|
|
Cost of funds as a fallback |
|
Cost of funds will not apply as a fallback. |
|
Definitions |
|
|
|
Additional Business Days: |
An RFR Banking Day. |
|
|
Applicable Rate Floor: |
Zero. |
|
|
Credit Adjustment Spread: |
None specified. |
|
|
Break Costs: |
None specified. |
|
|
Business Day Conventions (definition of "Month" and Clause 11.3 (Non-Business Days)): |
(a) If
any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period:
(i) subject
to paragraph (iii) below, if the numerically corresponding day is not a Business Day or Swingline Business Day (as applicable), that
period shall end on the next Business Day or Swingline Business Day (as applicable) in that calendar month in which that period is to
end if there is one, or if there is not, on the immediately preceding Business Day or Swingline Business Day (as applicable);
(ii) if
there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business
Day or Swingline Business Day (as applicable) in that calendar month; and
(iii) if
an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day or Swingline
Business Day (as applicable) in the calendar month in which that Interest Period is to end. |
|
|
|
(b) If an Interest Period would otherwise end on a day which is not a Business Day or Swingline Business Day (as applicable), that Interest Period will instead end on the next Business Day or Swingline Business Day (as applicable) in that calendar month (if there is one) or the preceding Business |
|
|
|
Day or Swingline Business Day (as applicable) (if there is not). |
|
|
Central Bank Rate: |
The policy rate of the Swiss National Bank as published by the Swiss National Bank from time to time. |
|
|
Central Bank Rate Adjustment: |
In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20 per cent. trimmed arithmetic mean (calculated by the Facility Agent, or by any other Finance Party which agrees to do so in place of the Facility Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available. |
|
|
|
For this purpose, "Central Bank Rate Spread" means,
in relation to any RFR Banking Day, the difference (expressed as a percentage rate per annum) calculated by the Facility Agent (or by
any other Finance Party which agrees to do so in place of the Facility Agent) between:
(a) the
RFR for that RFR Banking Day; and
(b) the
Central Bank Rate prevailing at close of business on that RFR Banking Day. |
|
|
Daily Rate: |
The "Daily Rate" for any RFR Banking Day is: |
|
|
|
(a) the RFR for that RFR Banking Day; or |
|
|
|
(b) if
the RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of:
(i) the
Central Bank Rate for that RFR Banking Day; and
(ii) the
applicable Central Bank Rate Adjustment; or
(c) if
paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which
is the aggregate of:
(i) the
most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and
(ii) the
applicable Central Bank Rate Adjustment,
rounded, in each case, to six decimal places (with 0.0000005 being
rounded upwards) and if, in each case, that rate or, in relation to an RFR Revolving Loan, the aggregate of that rate and the applicable
Credit Adjustment Spread, is less than the Applicable Rate Floor, the Daily Rate shall be deemed to be the Applicable Rate Floor or, in
relation to an RFR Revolving Loan, such a rate that the aggregate of the Daily Rate and the applicable Credit Adjustment Spread is the
Applicable Rate Floor. |
Lookback Period: |
Five RFR Banking Days. |
|
|
Market Disruption Rate: |
None specified. |
|
|
Relevant Market: |
The Swiss francs overnight repo market. |
|
|
Reporting Day: |
Not applicable. |
|
|
RFR: |
The SARON (Swiss Average Rate Overnight) reference rate administered by SIX (or any other person which takes over the administration of that rate) as at the close of trading on the SIX Swiss Exchange on the relevant day displayed on page SARON.S of the Refinitiv screen under the heading CLSFIX. |
|
|
RFR Banking Day: |
A day (other than a Saturday or Sunday) on which banks are open for the settlement of payments and foreign exchange transactions in Zurich. |
|
|
Reporting Times: |
Not applicable. |
Schedule
15
Daily
Non-Cumulative Compounded RFR Rate
The "Daily Non-Cumulative Compounded
RFR Rate" for any RFR Banking Day "i" during an Interest Period for an RFR Loan is the percentage rate per annum (without
rounding) calculated as set out below:
![](https://www.sec.gov/Archives/edgar/data/1374310/000110465923078169/tm2320400d1_ex10-1sp8img001.jpg)
where:
"UCCDRi"
means the Unannualised Cumulative Compounded Daily Rate for that RFR Banking Day "i";
"UCCDRi-1"
means, in relation to that RFR Banking Day "i", the Unannualised Cumulative Compounded Daily Rate for the immediately
preceding RFR Banking Day (if any) during that Interest Period;
"dcc" means 360 or,
in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that
number;
"ni" means
the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking
Day; and
the "Unannualised Cumulative
Compounded Daily Rate" for any RFR Banking Day (the "Cumulated RFR Banking Day") during that Interest Period
is the result of the below calculation (without rounding):
![](https://www.sec.gov/Archives/edgar/data/1374310/000110465923078169/tm2320400d1_ex10-1sp8img003.jpg)
where:
"ACCDR" means the Annualised
Cumulative Compounded Daily Rate for that Cumulated RFR Banking Day;
"tni" means
the number of calendar days from, and including, the first day of the Cumulation Period to, but excluding, the RFR Banking Day which
immediately follows the last day of the Cumulation Period;
"Cumulation Period"
means the period from, and including, the first RFR Banking Day of that Interest Period to, and including, the Cumulated RFR Banking
Day;
"dcc" has the meaning
given to that term above; and
the "Annualised Cumulative Compounded
Daily Rate" for that Cumulated RFR Banking Day is the percentage rate per annum (without rounding) calculated as set out below:
where:
"d0" means
the number of RFR Banking Days in the Cumulation Period;
"Cumulation Period"
has the meaning given to that term above;
"i" means a series
of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order in the Cumulation Period;
"DailyRatei-LP"
means, for any RFR Banking Day "i" in the Cumulation Period, the Daily Rate for the RFR Banking Day which is the applicable
Lookback Period prior to that RFR Banking Day "i";
"ni" means,
for any RFR Banking Day "i" in the Cumulation Period, the number of calendar days from, and including, that RFR Banking Day
"i" up to, but excluding, the following RFR Banking Day;
"dcc" has the meaning
given to that term above; and
"tni" has
the meaning given to that term above.
[SIGNATURES
NOT RESTATED]
SIGNATURES
The Company
Cboe Clear Europe N.V.
| Address: | Cboe Clear Europe N.V. |
Symphony Offices,
Gustav Mahlerplein 77, 1082 MS
The Netherlands
| Email: | legalandcompliance.cboecleareu@cboe.com |
| Attention: | Corporate Secretary |
Name: A.C. Siegmann, Managing Director
Name: V. Patel, Managing Director
CCE 2023 Amendment and Restatement Agreement
Signature Pages
The Guarantor
Cboe Global Markets, Inc.
| Address: | 433
West Van Buren Street, Chicago, Illinois 60607 |
| Attention: | Brian N. Schell |
| Name: | Brian N. Schell, Executive Vice President, |
Chief Financial Officer and Treasurer
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Continuing Bookrunner Mandated Lead Arrangers
Bank of America Europe DAC
Name: Damien Orban
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Bank of China Limited, London Branch
Name: Paul A. Stephens, Deputy Head of Financial
Institutions
Name: Tim Skeet, Chief Institutional Relationship
Officer
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Barclays Bank PLC
Name: Chris Bicheno, Vice President
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Citibank, N.A, London Branch
Name: Andrew Mason, Managing Director, BCMA
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Deutsche Bank Luxembourg S.A.
Name: Sven Walther
Name: Markus Lewalski
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Goldman Sachs Bank USA
Name: Amanda DeRoche
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Industrial and Commercial Bank of China Limited London Branch
Name: Ying Shi
Name: R.G. Clark
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Nordea Danmark, Filial af Nordea Bank Abp, Finland
Name: Jacob Larsen, Associate Director
By: |
/s/ Stanislava Pravdova-Nielsen |
|
Name: Stanislava Pravdova-Nielsen, Associate Director
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Royal Bank of Canada
Name: Romain Lisambert
CCE 2023 Amendment and Restatement Agreement
Signature Pages
The Toronto-Dominion Bank, London Branch
Name: Philip Bates, MD & Head European
Corporate Banking
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Commerzbank AG
Name: Rob Scott
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Lloyds Bank Plc
Name: Lee Chester
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Wells Fargo Bank International Unlimited Company
Name: Gemma O’Connor
CCE 2023 Amendment and Restatement Agreement
Signature Pages
J.P. Morgan SE
By: |
/s/ Gabrielle Tabouillot |
|
Name: Gabrielle Tabouillot, Vice President
Name: Luke Hudson, Executive Director
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Acceding Bookrunner Mandated Lead Arranger
Skandinaviska Enskilda Banken AB (publ)
By: |
/s/ Penny Neville-Park |
|
Name: Penny Neville-Park, Authorised Signatory
Name: Alison Butt, Authorised Signatory
CCE 2023 Amendment and Restatement Agreement
Signature Pages
The Revolving Lenders
Bank of America Europe DAC
Name: Stephen Elliott
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Bank of China Limited, London Branch
Name: Paul A. Stephens, Deputy Head of Financial
Institutions
Name: Tim Skeet, Chief Institutional Relationship
Officer
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Barclays Bank PLC
Name: Chris Bicheno, Vice President
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Citibank Europe PLC
Name: Roderick Peek
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Deutsche Bank Luxembourg S.A.
Name: Sven Walther
Name: Markus Lewalski
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Goldman Sachs Bank USA
Name: Ananda DeRoche
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Industrial and Commercial Bank of China Limited
London Branch
Name: Ying Shi
Name: R.G. Clark
CCE 2023 Amendment and Restatement Agreement
Signature Pages
JPMorgan Chase Bank, N.A., London Branch
By: |
/s/ Gabrielle Tabouillot |
|
Name: Gabrielle Tabouillot, Vice President
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Nordea Danmark, Filial af Nordea Bank Abp, Finland
Name: Jacob Larsen, Associate Director
By: |
/s/ Stanislava Pravdova-Nielsen |
|
Name: Stanislava Pravdova-Nielsen, Associate Director
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Royal Bank of Canada
Name: Romain Lisambert
CCE 2023 Amendment and Restatement Agreement
Signature Pages
The Toronto-Dominion Bank, London Branch
Name: Philip Bates, MD & Head European
Corporate Banking
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Commerzbank AG
Name: Rob Scott
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Lloyds Bank Plc
Name: Lee Chester
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Skandinaviska Enskilda Banken AB (publ)
By: |
/s/ Penny Neville-Park |
|
Name: Penny Neville-Park, Authorised Signatory
Name: Alison Butt, Authorised Signatory
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Wells Fargo Bank International Unlimited Company
Name: Gemma O’Connor
CCE 2023 Amendment and Restatement Agreement
Signature Pages
The Swingline Lenders
Bank of America Europe DAC
Name: Stephen Elliott
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Bank of China Limited, London Branch
Name: Paul A. Stephens, Deputy Head of Financial
Institutions
Name: Tim Skeet, Chief Institutional Relationship
Officer
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Barclays Bank PLC
Name: Chris Bicheno, Vice President
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Citibank Europe PLC
Name: Roderick Peek
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Deutsche Bank Luxembourg S.A.
Name: Sven Walther
Name: Markus Lewalski
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Goldman Sachs Bank USA
Name: Amanda DeRoche
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Industrial and Commercial Bank of China Limited
London Branch
Name: Ying Shi
Name: R.G. Clark
CCE 2023 Amendment and Restatement Agreement
Signature Pages
JPMorgan Chase Bank, N.A., London Branch
By: |
/s/ Gabrielle Tabouillot |
|
Name: Gabrielle Tabouillot, Vice President
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Nordea Danmark, Filial af Nordea Bank Abp, Finland
Name: Jacob Larsen, Associate Director
By: |
/s/ Stanislava Pravdova-Nielsen |
|
Name: Stanislava Pravdova-Nielsen, Associate Director
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Royal Bank of Canada
Name: Romain Lisambert
CCE 2023 Amendment and Restatement Agreement
Signature Pages
The Toronto-Dominion Bank, London Branch
Name: Philip Bates, MD & Head European
Corporate Banking
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Commerzbank AG
Name: Rob Scott
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Lloyds Bank Plc
Name: Lee Chester
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Skandinaviska Enskilda Banken AB (publ)
By: |
/s/ Penny Neville-Park |
|
Name: Penny Neville-Park, Authorised Signatory
Name: Alison Butt, Authorised Signatory
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Wells Fargo Bank International Unlimited Company
Name: Gemma O’Connor
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Designated Entities
Bank of America, N.A. (as a Designated Entity for USD drawdowns
in respect of Swingline Facility J only)
Name: Albert Wheeler, Vice President
CCE 2023 Amendment and Restatement Agreement
Signature Pages
Citibank, N.A. (as a Designated Entity for
USD drawdowns in respect of Swingline Facility J only)
Name: Ciaran Small
CCE 2023 Amendment and Restatement Agreement
Signature Pages
The Facility Agent
Bank of America Europe DAC
| Address: | Two
Park Place Hatch Street, Dublin Ireland |
| Email: | emealendingopsagencybilat@bofa.com |
| Attention: | Loans Agency Servicing |
Name: Joanna Harris, Assistant Vice President
CCE 2023 Amendment and Restatement Agreement
Signature Pages
The U.S. Dollar Swingline Agent
Bank of America, N.A.
| Address: | GATEWAY
VILLAGE-900 BUILDING, 900 W TRADE ST, CHARLOTTE, NC, 28255-0001, United States of America |
| Email: | cletise.m.ussery@bofa.com |
Name: Albert Wheeler, Vice President
CCE 2023 Amendment and Restatement Agreement
Signature Pages
The €/£ Swingline Agent and the
Swiss Francs Swingline Agent
Bank of America Europe DAC
| Address: | Two
Park Place Hatch Street, Dublin Ireland |
| Email: | emealendingopsagencybilat@bofa.com |
| Attention: | Loans Agency Servicing |
Name: Joanna Harris, Assistant Vice President
CCE 2023 Amendment and Restatement Agreement
Signature Pages
The Danish Krone/Norwegian Krone/Swedish Krona
Swingline Agent
Nordea Danmark, Filial af Nordea Bank
Abp, Finland
| Address: | Grønjordsvej
10, 2300 Copenhagen |
| Email: | sls.sweden@nordea.com; agency@nordea.com |
| Attention: | Structured Loan Services |
Name: Jacob Larsen, Associate Director
By: |
/s/ Stanislava Pravdova-Nielsen |
|
Name: Stanislava Pravdova-Nielsen, Associate Director
CCE 2023 Amendment and Restatement Agreement
Signature Pages
The Facility C Swingline Agent
Skandinaviska Enskilda Banken AB (publ)
Address:
Email:
Fax No:
Attention:
By: |
/s/ Penny Neville-Park |
|
Name: Penny Neville-Park, Authorised Signatory
Name: Alison Butt, Authorised Signatory
CCE 2023 Amendment and Restatement Agreement
Signature Pages
The Security Agent
Citibank N.A., London Branch
| Address: | 6th
Floor CGC1, Citigroup Centre, Canada Square, London E14 5LB |
| Email: | issuerpfla@citi.com |
| Attention: | PFLA Team, Agency & Trust |
Name: Laura Hughes, Vice President
CCE 2023 Amendment and Restatement Agreement
Signature Pages
v3.23.2
X |
- DefinitionBoolean flag that is true when the XBRL content amends previously-filed or accepted submission.
+ References
+ Details
Name: |
dei_AmendmentFlag |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionFor the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
+ References
+ Details
Name: |
dei_DocumentPeriodEndDate |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:dateItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
+ References
+ Details
Name: |
dei_DocumentType |
Namespace Prefix: |
dei_ |
Data Type: |
dei:submissionTypeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionAddress Line 1 such as Attn, Building Name, Street Name
+ References
+ Details
Name: |
dei_EntityAddressAddressLine1 |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- Definition
+ References
+ Details
Name: |
dei_EntityAddressCityOrTown |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCode for the postal or zip code
+ References
+ Details
Name: |
dei_EntityAddressPostalZipCode |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the state or province.
+ References
+ Details
Name: |
dei_EntityAddressStateOrProvince |
Namespace Prefix: |
dei_ |
Data Type: |
dei:stateOrProvinceItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionA unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityCentralIndexKey |
Namespace Prefix: |
dei_ |
Data Type: |
dei:centralIndexKeyItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionIndicate if registrant meets the emerging growth company criteria.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityEmergingGrowthCompany |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
+ References
+ Details
Name: |
dei_EntityFileNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:fileNumberItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
+ References
+ Details
Name: |
dei_EntityIncorporationStateCountryCode |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarStateCountryItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityRegistrantName |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b-2
+ Details
Name: |
dei_EntityTaxIdentificationNumber |
Namespace Prefix: |
dei_ |
Data Type: |
dei:employerIdItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionLocal phone number for entity.
+ References
+ Details
Name: |
dei_LocalPhoneNumber |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:normalizedStringItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 13e -Subsection 4c
+ Details
Name: |
dei_PreCommencementIssuerTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 14d -Subsection 2b
+ Details
Name: |
dei_PreCommencementTenderOffer |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTitle of a 12(b) registered security.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection b
+ Details
Name: |
dei_Security12bTitle |
Namespace Prefix: |
dei_ |
Data Type: |
dei:securityTitleItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionName of the Exchange on which a security is registered.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Number 240 -Section 12 -Subsection d1-1
+ Details
Name: |
dei_SecurityExchangeName |
Namespace Prefix: |
dei_ |
Data Type: |
dei:edgarExchangeCodeItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Exchange Act -Section 14a -Number 240 -Subsection 12
+ Details
Name: |
dei_SolicitingMaterial |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
+ References
+ Details
Name: |
dei_TradingSymbol |
Namespace Prefix: |
dei_ |
Data Type: |
dei:tradingSymbolItemType |
Balance Type: |
na |
Period Type: |
duration |
|
X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ ReferencesReference 1: http://www.xbrl.org/2003/role/presentationRef -Publisher SEC -Name Securities Act -Number 230 -Section 425
+ Details
Name: |
dei_WrittenCommunications |
Namespace Prefix: |
dei_ |
Data Type: |
xbrli:booleanItemType |
Balance Type: |
na |
Period Type: |
duration |
|
Cboe Global Markets (AMEX:CBOE)
Historical Stock Chart
From Jun 2024 to Jul 2024
Cboe Global Markets (AMEX:CBOE)
Historical Stock Chart
From Jul 2023 to Jul 2024