EXHIBIT 4.1

EXECUTION VERSION

 

DATED 16 DECEMBER 2011

(1) PAG INTERNATIONAL LIMITED

(as Parent)

(2) SYTNER GROUP LIMITED

(as Company and Original Borrower)

(3) THE COMPANIES LISTED IN PART 1 OF SCHEDULE 1 OF THIS AGREEMENT

(as Original Guarantors)

(4) NATIONAL WESTMINSTER BANK PLC AND BMW FINANCIAL SERVICES (GB) LIMITED

(as Mandated Lead Arranger)

(5) THE FINANCIAL INSTITUTIONS LISTED IN PART 2 AND PART 3 OF SCHEDULE 1 OF THIS AGREEMENT

(as Original Lenders)

(6) THE ROYAL BANK OF SCOTLAND PLC

(as Agent)

(7) NATWEST MARKETS PLC

(as Security Agent)

___________________________________________________________________

 

£150,000,000 REVOLVING FACILITY AGREEMENT

AS AMENDED AND RESTATED ON 19 DECEMBER 2014, 2 APRIL 2015 AND

12 DECEMBER 2018

___________________________________________________________________

 

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CONTENTS

 

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THIS AGREEMENT is made on 16 December 2011 as amended and restated on 19 December 2014, 2 April 2015 and 12 December 2018

BETWEEN:-

(1)          PAG INTERNATIONAL LIMITED (previously known as UAG UK Holdings Limited, the " Parent ");

(2)          SYTNER GROUP LIMITED (the " Company ");

(3)          THE COMPANIES listed in Part 1 of Schedule 1  ( The Original Parties ) as original borrowers (the " Original Borrowers ");

(4)          THE SUBSIDIARIES of the Company listed in Part 1 of Schedule 1  ( The Original Parties ) as original guarantors (together with the Parent and the Company, the " Original Guarantors ");

(5)          NATIONAL WESTMINSTER BANK PLC AND BMW FINANCIAL SERVICES (GB) LIMITED as mandated lead arrangers (whether acting individually or together) (the " Arranger ");

(6)          THE FINANCIAL INSTITUTIONS listed in Part 2 and Part 3 of Schedule 1  ( The Original Parties ) as lenders (the " Original Lenders ");

(7)          THE ROYAL BANK OF SCOTLAND PLC as agent of the other Finance Parties (the " Agent "); and

(8)          NATWEST MARKETS PLC as security trustee for the Secured Parties (the " Security Agent ").

IT IS AGREED as follows:-

SECTION 1

INTERPRETATION

1.            DEFINITIONS AND INTERPRETATION

1.1         Definitions

In this Agreement:-

 

" 2012 Amendment Deed "	means the amendment deed dated 10 January 2012 amending this Agreement
" Acceptable Bank "	means:- (a)           a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or A2 or higher by Moody's Investors Service Limited or a comparable rating from an internationally recognised credit rating agency or (b)            a Lender or

 

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" Second Amendment and Restatement Agreement "	means the agreement amending and restating this Agreement entered into between Parties on the Second Amendment and Restatement Date
" Second Amendment and Restatement Date "	means 2 April 2015
" Secured Parties "	means each Finance Party from time to time party to this Agreement, any Receiver or 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
" Short Term Loan "	means a loan from PAG or any of its Subsidiaries (other than a member the Group) to any member of Group provided that: (a)           each such loan is to be repaid within 45 days of being made to the relevant member(s) of the Group (subject to Clause 24.18.3); (b)           a maximum of two such loans may be made available to the relevant member(s) of the Group in each calendar year; and (c)           such a loan may not be made available unless a period of at least 90 days has elapsed since the previous loan was repaid by the relevant member(s) of the Group

 

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1.2            Construction

1.2.1        Unless a contrary indication appears, a reference in this Agreement to:-

(a)            the " Agent ", the " Arranger ", any " Finance Party ", any " Hedge Counterparty ", any " Lender ", any " Obligor ", any " Party ", any " Secured Party ", the " Security Agent ", the " Bilateral Overdraft Lender " or any other person 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 and, in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;

(b)            a document in " agreed form " is a document which is previously agreed in writing by or on behalf of the Company and the Agent or, if not so agreed, is in the form specified by the Agent;

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

(d)            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 or restated;

(e)            a " group of Lenders " includes all the Lenders;

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(f)             " guarantee " means (other than in Clause 20  ( Guarantee and Indemnity )) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

(g)           " 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;

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

(i)             a " regulation " includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but if not having the force of law, being one which is customarily complied with in the relevant jurisdiction by persons or entities equivalent to the relevant person or entity in question) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

(j)             a provision of law is a reference to that provision as amended or re-enacted;

(k)            "date of this Agreement" means 16 December 2011; and

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

1.2.2       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.

1.2.3       Section, Clause and Schedule headings are for ease of reference only.

1.2.4       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.

1.2.5        A Borrower providing " cash cover " for an Ancillary Facility means a Borrower paying an amount in the currency of the Ancillary Facility) to an interest-bearing account in the name of the Borrower and the following conditions being met:-

(a)            the account is with the Security Agent or with the Ancillary Lender for which that cash cover is to be provided;

(b)            until no amount is or may be outstanding under that Ancillary Facility, withdrawals from the account may only be made to pay the relevant Finance Party amounts due and payable to it under this Agreement in respect of that Ancillary Facility; and

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(c)            the Borrower has executed a security document over that account, in form and substance satisfactory to the Finance Party with which that account is held, creating a first ranking security interest over that account.

1.2.6        A Default (other than an Event of Default) is " continuing " if it has not been remedied or waived and an Event of Default is " continuing " if it has not been waived.

1.2.7        A Borrower " repaying " or " prepaying " an Ancillary Outstandings means:-

(a)            that Borrower providing cash cover in respect of the Ancillary Outstandings;

(b)            the maximum amount payable under the Ancillary Facility being reduced or cancelled in accordance with its terms; or

(c)            the Ancillary Lender being satisfied that it has no further liability under that Ancillary Facility,

and the amount by which the Ancillary Outstandings are, repaid or prepaid under Clauses 1.2.7(a) and 1.2.7(b) above is the amount of the relevant cash cover, reduction or cancellation.

1.2.8        An amount borrowed includes any amount utilised under an Ancillary Facility.

1.3            Currency symbols and definitions

 " £ ", " GBP " and " sterling " denote the lawful currency of the United Kingdom.

1.4            Third party rights

1.4.1       A person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this Agreement.

1.4.2       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.

1.5            Provision of information by directors

If any provision of a Finance Document requires a director or any member of the Group to provide any information, to certify any matter or to make any presentation, any such provision, certification or presentation shall, provided it is made in good faith, be made without personal liability on the part of such director (other than in the case of fraud or gross negligence).

 

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SECTION 2

THE FACILITY

2.              THE FACILITY

2.1            The Facility

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

2.1.2        The Facility will be available to the Borrowers.

2.1.3        Subject to the terms of this Agreement and the Ancillary Documents, an Ancillary Lender may make all or part of its Commitment available to any Borrower as an Ancillary Facility.

2.2            Increase

2.2.1        The Parent or the Company may by giving prior notice to the Agent by no later than the date falling 10 Business Days after the effective date of a cancellation of:-

(a)            the Available Commitments of a Defaulting Lender in accordance with Clause 8.5  ( Right of cancellation in relation to a Defaulting Lender ); or

(b)            the Commitments of a Lender in accordance with Clause 8.1 (Illegality),

request that the Total Commitments be increased (and the Total Commitments under that Facility shall be so increased) in an aggregate amount in Sterling of up to the amount of the Available Commitments or Commitments so cancelled as follows:-

(c)            the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each an " Increase Lender ") selected by the Parent or the Company (each of which shall not be a Sponsor Affiliate or a member of the Group) and which is acceptable to the Agent (acting reasonably) and each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender in respect of those Commitments;

(d)            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; and

(e)            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

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respect of that part of the increased Commitments which it is to assume; and

(f)             the Commitments of the other Lenders shall continue in full force and effect.

2.2.2       The Agent shall, subject to Clause 2.2.3 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.

2.2.3       The Agent shall only be obliged to execute an Increase Confirmation delivered to it by an Increase 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 assumption of the increased Commitments by that Increase Lender.

2.2.4       An increase in the Commitments relating to the Facility will only be effective if the Increase Lender enters into the documentation required for it to accede as a party to the Intercreditor Agreement.

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

2.2.6       The Parent shall promptly on demand pay the 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.

2.2.7       The Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 26.3  ( Assignment or transfer fee ) if the increase was a transfer pursuant to Clause 26.5  ( Procedure for transfer ) and if the Increase Lender was a New Lender.

2.2.8       The Parent may pay to the Increase Lender a fee in the amount and at the times agreed between the Parent and the Increase Lender in a letter between the Parent 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 Clause.

2.2.9       Neither the 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.

2.2.10     Clause 26.4  ( 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:-

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(a)            an " Existing Lender " were references to all the Lenders immediately prior to the relevant increase;

(b)            the " New Lender " were references to that " Increase Lender "; and

(c)            a " re‑transfer " and " re‑assignment " were references to respectively a " transfer " and " assignment ".

2.3            Finance Parties' rights and obligations

2.3.1       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.

2.3.2       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 Clause 2.3.3 below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of the Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in the Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

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

2.4            Accordion Facility

2.4.1       At any time up to the date falling 12 months before the end of the Availability Period for the Facility, the Parent or the Company may give notice (a " Requested New Commitments Notice ") to the Agent that it wishes to increase the Total Commitments.  The Requested New Commitments Notice must specify the amount by which the Total Commitments are to be increased (the " Requested New Commitments" ).

2.4.2       On receipt of any Requested New Commitments Notice, the Agent shall notify the relevant Lenders in accordance with Clauses 2.4.3 and 2.4.4 below.  From the date of such notification, the Agent and any Lender shall have up to 10 Business Days to request such further information relating to the Group from the Company as they may reasonably require. The Company shall provide such further information, as reasonably requested, to the Agent or the requesting Lender within 10 Business Days of receiving such request (" Further Information ").

2.4.3       The opportunity to participate in the Requested New Commitments shall:

(a)            firstly, be offered to Lenders on a pro-rata basis to their existing Commitments and each such Lender shall have:

(i)             10 Business Days from the date on which the Requested New Commitments Notice is served on a Lender; or

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(ii)            if later, five Business Days from the date on which the Lenders receive the Further Information from the Company,

(the " Acceptance Period ") to confirm to the Agent whether it wishes to provide all or any part of the Requested New Commitments and the amount of any proposed arrangement fee payable in respect of the Requested New Commitments it is prepared to make available (the " New Commitments Arrangement Fee ") and any additional conditions precedent required by it (acting reasonably), including any additional Transaction Security (in form and substance satisfactory to the Finance Parties), (" Additional CP s") to be satisfied as a condition precedent to it providing the Requested New Commitments;

(b)

(i)             in the event that one or more of the existing Lenders offers to make the Requested New Commitments available on the basis of proposed New Commitments Arrangement Fees which are lower than the proposed New Commitments Arrangement Fees offered by other existing Lenders, the Company shall offer to those Lenders who have proposed the higher New Commitments Arrangement Fee the opportunity to provide the Requested New Commitments at such lower New Commitments Arrangement Fee, and each such Lender shall have five Business Days to respond to such offer; and

(ii)            thereafter, the Company may elect to re-offer the Requested New Commitments bearing the higher proposed New Commitments Arrangement Fees to the existing Lenders (other than those who have proposed the higher New Commitments Arrangement Fee) on a pro-rata basis or as otherwise agreed between those Lenders and each such Lender shall have five Business Days to respond to such offer; and

(c)            in the event that any one or more Lenders notifies the Agent that it does not wish to provide all or any part of any Requested New Commitments (or a Lender has failed to notify the Agent within the Acceptance Period that it wishes to provide all or any part of the Requested New Commitments) (the " Declined New Commitments ") the amount of such Declined New Commitments shall be offered to the Lenders who have agreed to provide all or any part of the Requested New Commitments on a pro-rata basis or as otherwise agreed between those Lenders; and if one or more Lenders (as the case may be) do not agree to provide the Requested New Commitments (or as the case may be, Declined New Commitments) offered to them (in full or in part) or if the Company has exercised its right of election under paragraph (b) above and there are existing Lenders who are unwilling to match the lowest proposed New Commitments Arrangement Fees (the aggregate of the amount of the Requested New Commitments not provided by one or more of the Lenders (as the case may be) and the amount of the Requested New Commitments in respect of which the proposed New Commitments Arrangement Fees exceed the lowest proposed New Commitments Arrangement Fees being a " New Commitments Shortfall "), then, in accordance with Clause 2.4.4 the Company may

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offer to other persons the opportunity to take up the Requested New Commitments in an amount equal to the New Commitments Shortfall.

2.4.4       If, following consultation with the Lenders in accordance with Clause 2.4.3, there is a New Commitments Shortfall, the Requested New Commitments or the New Commitments Shortfall (as appropriate) may be offered by the Company (in full or in part) (the " Offered New Commitments ") to any bank, financial institution, trust, fund or other entity (which is not a member of, a nominee of, or an entity that is in any way affiliated to, the Group) that is not a Lender (a " New Commitments Lender ") or to any existing Lender for a period not exceeding 10 Business Days from the last day of the process detailed at Clause 2.4.3.  Any New Commitments Lender may provide the Offered New Commitments to the Company, provided that the arrangement fee to be applied by that existing Lender or New Commitments Lender to the Offered New Commitments shall not be higher than agreed by the existing Lenders with respect to the Requested New Commitments, except if the arrangement fee is higher, the Offered New Commitments will first be offered to the existing Lenders in accordance with Clause 2.4.3 (save that the 10 Business Day period shall be reduced to five Business Days).

2.4.5       Once the procedures outlined at clause 2.4.1 to 2.4.4 above have been followed, and either the Requested New Commitments have all been allocated or the Company has agreed that they will not all be so allocated, the Company may then serve a notice on the Agent identifying the agreed New Commitments and all details relating thereto in the form set out in Schedule 14 (the “ New Commitments Notice ”).

2.4.6       The Company shall not increase the Commitments pursuant to the provisions of this Clause 2.4 on more than 3 occasion(s).

2.4.7       A  New Commitments Notice shall request New Commitments in aggregate of not less than £15,000,000.

2.4.8       No New Commitments may be proposed under this Clause 2.4 if the aggregate of all New Commitments would be greater than £100,000,000.

2.4.9       The assumption of the New Commitments on the date specified at paragraph 3 of the New Commitments Notice will only be effective if:-

(a)            the Repeating Representations to be made by each Obligor are true in all material respects on such date;

(b)            the Agent has received a New Commitments Notice duly executed by all parties thereto confirming that no Default has occurred and is continuing and no Default would occur on the Effective Date as a result of the assumption of the New Commitments and the New Commitments Lender or existing Lender providing New Commitments (as appropriate) confirming that it is satisfied (acting reasonably) that its Additional CPs have been satisfied; and

(c)            in relation to a New Commitments Lender:-

(i)             such New Commitments Lender has acceded to this Agreement as a Lender by delivering a duly completed and executed Lender Accession Letter to the Agent; and

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(ii)            the 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 New Commitments by that New Commitments Lender,

such date being the  " Effective Date " and following the confirmation and completion of the actions in paragraphs (a),  (b) and (c) above (including by executing the relevant documents) the Agent shall promptly notify the Company , any New Commitments Lender and the other Lenders that the Effective Date has occurred.

2.4.10      If the Effective Date has not occurred by the earlier of:-

(a)            the date falling 40 Business Days after the date of the Requested New Commitments Notice; or

(b)            the date falling 10 Business Days after a New Commitments Notice is delivered,

then any offer by a Lender to provide the Requested New Commitments or New Commitments as appropriate shall lapse and no Lender shall be obliged to provide such Requested New Commitments or New Commitments as appropriate.  For the avoidance of doubt, any such offer that lapses pursuant to this Clause 2.4.10 shall not be deemed as an increase of the Commitments for the purposes of the limit in Clause 2.4.5.

2.4.11      A New Commitments Notice is irrevocable and will not be regarded as having been duly completed unless it specifies:-

(a)            the date on which the New Commitments are to be assumed; and

(b)            the amount of the New Commitments allocated to each Lender and/or New Commitments Lender named in the New Commitments Notice,

and has been executed on behalf of the Company , the Agent and each Lender and/or New Commitments Lender which is making available New Commitments.  The Agent shall sign each New Commitment Notice presented to it which appears, on its face, to be in order.

2.4.12     Each New Commitments Lender shall comply with the provisions of Clause 26  ( Changes to the Lenders ) to the extent applicable.

2.4.13     Each of the Obligors and any New Commitments Lender shall assume the obligations towards one another and/or acquire rights against one another as the Obligors and the New Commitments Lender would have assumed and/or acquired had the New Commitments Lender been an Original Lender.

2.4.14     Each New Commitments Lender shall become a Party as a "Lender" and any New Commitments Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that New Commitments Lender and those Finance Parties would have assumed and/or acquired had the New Commitments Lender been an Original Lender.

2.4.15     Subject to Clause 2.4.10, by signing the Lender Accession Letter and / or the New Commitments Notice each such New Commitments Lender (or Lender as

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applicable) agrees to commit the New Commitments set out against its name in the New Commitments Notice on the Effective Date and on the Effective Date:-

(a)            in the case of an existing Lender providing a New Commitment, its Commitment shall be increased by the amount of the New Commitments which it has agreed to provide; and

(b)            in the case of a person providing a New Commitment which is not already a Lender, it shall become a Lender with a Commitment equal to the New Commitments which it has agreed to provide.

2.4.16     Each Party shall co-operate to ensure that, on and following the Effective Date, the proportion of the aggregate amount of all the Facility Loans which each Lender holds is the same as the proportion which the Commitment of each Lender at such time bears to the Total Commitments.

2.4.17     Upon the Effective Date, the terms of this Agreement (including, for the avoidance of doubt, the Margin but excluding the arrangement fees) shall apply to the New Commitments as if the New Commitments were Commitments at the date of this Agreement.

2.4.18     Each Lender agrees that it shall, within 10 Business Days of a request to do so, sign any amendment agreement required in respect of this Agreement in order to document any purely administrative amendment required solely to record the amount of any New Commitments and its terms provided in accordance with this Clause 2.4.  Each Party shall use reasonable endeavours to ensure that any such amendment agreement is agreed and signed within the timeframes set out in this Clause 2.4.

2.4.19      The Company shall:

(a)             on each Effective Date, pay to the Agent (for its own account):

(i)              a fee of £2,500; and

(ii)             a fee in an amount equal to the fee which would be payable under Clause 26.3 (Assignment or transfer fee) in circumstances where any of the New Commitments are provided by a New Commitments Lender; and

(b)            promptly on demand pay the Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.4.

2.4.20      The Agent shall notify all Parties of:-

(a)              the Effective Date;

(b)              the amount of the New Commitments being made available by each Lender; and

(c)              the identity of any New Commitments Lender.

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2.5            Obligors' Agent

2.5.1       Each Obligor (other than the Company) by its execution of this Agreement or an Accession Deed irrevocably appoints the Company (acting through one or more authorised signatories) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:-

(a)            the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to execute on its behalf any Accession Deed, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and

(b)            each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company,

and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.

2.5.2       Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors' Agent or given to the Obligors' Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors' Agent and any other Obligor, those of the Obligors' Agent shall prevail.

3.              PURPOSE

3.1           Each Borrower shall apply all amounts borrowed by it under the Facility and any utilisation of any Ancillary Facility towards the general corporate and working capital purposes of the Group (but not, in the case of any utilisation of any Ancillary Facility, towards prepayment of any Utilisation).

3.2            Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

4.              CONDITIONS OF UTILISATION

4.1            Initial conditions precedent

4.1.1       The Lenders will only be obliged to comply with Clause 5.4  ( Lenders' participation ) in relation to any Utilisation if on or before the Utilisation Date for that Utilisation, the Agent has received (or waived its requirement to receive) all of the documents and other evidence listed in Part 1 of Schedule 2  ( Conditions precedent ) in form and substance satisfactory to the Agent.  The Agent shall notify the Company and

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the Lenders promptly upon being so satisfied. The documents and other evidence listed in Part 1 of Schedule 2  ( Conditions precedent ) were satisfied or waived on or around 16 December 2011.

4.1.2       Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in Clause 4.1.1 above, the Lenders authorise (but do not require) the Agent to give that notification.  The 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

Subject to Clause 4.1 (Initial Conditions Precedent), the Lenders will only be obliged to comply with Clause 5.4  ( Lenders' participation ), if on the date of the Utilisation Request and on the proposed Utilisation Date:-

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

4.2.2        in relation to any Utilisation on the Closing Date, all the representations and warranties in Clause 21  ( Representations ) or, in relation to any other Utilisation, the Repeating Representations to be made by each Obligor are true in all material respects.

4.3            Maximum number of Utilisations

A Borrower (or the Company) may not deliver a Utilisation Request if as a result of the proposed Utilisation more than 10 Utilisations would be outstanding.

 

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SECTION 3

UTILISATION

5.              UTILISATION - LOANS

5.1            Delivery of a Utilisation Request

A Borrower (or the Company on its behalf) may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

5.2            Completion of a Utilisation Request for Loans

5.2.1       Each Utilisation Request for a Loan is irrevocable and will not be regarded as having been duly completed unless:-

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

(b)            the currency and amount of the Utilisation comply with Clause 5.3  ( Currency and amount ); and

(c)            the proposed Interest Period complies with Clause 12  ( Interest Periods ).

5.2.2        Only one Utilisation may be requested in each Utilisation Request.

5.3            Currency and amount

5.3.1       The currency specified in a Utilisation Request must be Sterling.

5.3.2       The amount of the proposed Utilisation must be an amount which is not more than the Available Facility and which is a minimum of £250,000 or, if less, the Available Facility.

5.4            Lenders' participation

5.4.1       If the conditions set out in this Agreement have been met, and subject to Clause 7.1  ( Repayment of Loans ), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

5.4.2       Other than as set out in Clause 5.4.3 below, the amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

5.4.3       If a Utilisation is made to repay Ancillary Outstandings, each Lender's participation in that Utilisation will be in an amount (as determined by the Agent) which will result as nearly as possible in the aggregate amount of its participation in the Utilisations then outstanding bearing the same proportion to the aggregate amount of the Utilisations then outstanding as its Commitment bears to the Total Commitments.

5.4.4       The Agent shall notify each Lender of the amount of each Loan and the amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 32.1  ( Payments to the Agent ), in each case by the Specified Time.

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5.5            Limitations on Utilisations

5.5.1       The maximum aggregate amount of the Ancillary Commitments of all the Lenders shall not at any time exceed £15,000,000.

5.5.2       The maximum aggregate amount of the Ancillary Commitments of all the Lenders made available by way of overdraft, same-day access LIBOR loan facility or other facility made available on a short term basis shall not at any time exceed £10,000,000.

5.6            Cancellation of Commitment

The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.

6.              ANCILLARY FACILITIES

6.1            Type of Facility

An Ancillary Facility may be by way of:-

6.1.1       an overdraft facility;

6.1.2       a same-day access LIBOR loan facility;

6.1.3       a guarantee, bonding, documentary or stand-by letter of credit facility; or

6.1.4       any other facility or accommodation required in connection with the business of the Group and which is agreed by the Company with an Ancillary Lender.

6.2            Availability

6.2.1       If the Company and a Lender agree and except as otherwise provided in this Agreement, the Lender may provide all or part of its Commitment as an Ancillary Facility).  For the avoidance of doubt, BMW Financial Services (GB) Limited shall not be an Ancillary Lender.  National Westminster Bank Plc shall make available to the Company within 45 days of the date of this Agreement, an Ancillary Facility by way of a same-day access LIBOR loan facility on an un-committed basis provided that no Default has occurred or is continuing and that the other terms of this Agreement relating to the provision of Ancillary Facilities have been complied with in relation to that Ancillary Facility;

6.2.2       An Ancillary Facility shall not be made available unless, not later than 5 Business Days prior to the Ancillary Commencement Date for an Ancillary Facility, the Agent has received from the Company:-

(a)            a notice in writing of the establishment of an Ancillary Facility and specifying:-

(i)             the proposed Borrower(s) (or Affiliates of a Borrower) which may use the Ancillary Facility;

(ii)            the proposed Ancillary Commencement Date and expiry date of the Ancillary Facility;

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(iii)           the proposed type of Ancillary Facility to be provided;

(iv)           the proposed Ancillary Lender;

(v)            the proposed Ancillary Commitment, the maximum amount of the Ancillary Facility and, in the case of a Multi-account Overdraft, its Designated Gross Amount and its Designated Net Amount; and

(b)            any other information which the Agent may reasonably request in connection with the Ancillary Facility.

The Agent shall promptly notify the Ancillary Lender and the other Lenders of the establishment of an Ancillary Facility.

6.2.3        Subject to compliance with Clause 6.2.2 above:-

(a)              the Lender concerned will become an Ancillary Lender; and

(b)              the Ancillary Facility will be available,

with effect from the date agreed by the Company and the Ancillary Lender.

6.3            Terms of Ancillary Facilities

6.3.1        Except as provided below, the terms of any Ancillary Facility will be those agreed by the Ancillary Lender and the Company.

6.3.2        Those terms:-

(a)            must be based upon normal commercial terms at that time (except as varied by this Agreement);

(b)            may allow only Borrowers (or Affiliates of Borrowers nominated pursuant to Clause 6.9  ( Affiliates of Borrowers )) to use the Ancillary Facility;

(c)            may not allow the Ancillary Outstandings to exceed the Ancillary Commitment;

(d)            may not allow a Lender's Ancillary Commitment to exceed that Lender's Available Commitment (before taking into account the effect of the Ancillary Facility on that Available Commitment); and

(e)            must require that the Ancillary Commitment is reduced to zero, and that all Ancillary Outstandings are repaid not later than the Termination Date (or such earlier date as the Commitment of the relevant Ancillary Lender (or its Affiliate) is reduced to zero).

6.3.3        If there is any inconsistency between any term of an Ancillary Facility and any term of this Agreement, this Agreement shall prevail except for:

(a)            Clause 35.3 (Day count convention) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility;

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(b)            an Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail to the extent required to permit the netting of balances on those accounts; and

(c)            where the relevant term of this Agreement would be contrary to, or inconsistent with, the law governing the relevant Ancillary Document, in which case that term of this Agreement shall not prevail.

6.3.4       Interest, commission and fees on Ancillary Facilities are dealt with in Clause 14.5  ( Interest, commission and fees on Ancillary Facilities ).

6.4            Repayment of Ancillary Facility

6.4.1       An Ancillary Facility shall cease to be available on the Termination Date or such earlier date on which its expiry date occurs or on which it is cancelled in accordance with the terms of this Agreement.

6.4.2       If an Ancillary Facility expires in accordance with its terms the Ancillary Commitment of the Ancillary Lender shall be reduced to zero (and its Commitment shall be increased accordingly).

6.4.3       No Ancillary Lender may demand repayment or prepayment of any Ancillary Outstandings prior to the expiry date of the relevant Ancillary Facility unless:-

(a)            required to reduce the Gross Outstandings of a Multi-account Overdraft to or towards an amount equal to its Net Outstandings;

(b)            the Total Commitments have been cancelled in full, or all outstanding Utilisations under the Facility have become due and payable in accordance with the terms of this Agreement;

(c)            it becomes unlawful in any applicable jurisdiction for the Ancillary Lender to perform any of its obligations as contemplated by this Agreement or to fund, issue or maintain its participation in its Ancillary Facility (or it becomes unlawful for any Affiliate of the Ancillary Lender for the Ancillary Lender to do so); or

(d)            both:

(i)             the Available Commitments; and

(ii)            the notice of the demand given by the Ancillary Lender,

(e)            would not prevent the relevant Borrower funding the repayment of those Ancillary Outstandings in full by way of Utilisation.

6.4.4        If a Utilisation is made to repay Ancillary Outstandings in full, the relevant Commitment shall be reduced to zero.

6.5            Limitation on Ancillary Outstandings

Each Borrower shall procure that:-

6.5.1       the Ancillary Outstandings under any Ancillary Facility shall not exceed the Ancillary Commitment applicable to that Ancillary Facility; and

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6.5.2       in relation to a Multi-account Overdraft:-

(a)            the Ancillary Outstandings shall not exceed the Designated Net Amount applicable to that Multi-account Overdraft; and

(b)            the Gross Outstandings shall not exceed the Designated Gross Amount applicable to that Multi-account Overdraft.

6.6           Adjustment for Ancillary Facilities upon acceleration

In this Clause 6.6:-

 

6.6.1        If a notice is served under Clause 25.18  ( Acceleration ) (other than a notice declaring Utilisations to be due on demand), each Lender and each Ancillary Lender shall (subject to Clause 6.6.6 below) promptly adjust (by making or receiving (as the case may be) corresponding transfers of rights and obligations under the Finance Documents relating to Revolving Outstandings) their claims in respect of amounts outstanding to them under the Facility and each Ancillary Facility to the extent necessary to ensure that after such transfers the Revolving Outstandings of each Lender bear the same proportion to the Total Revolving Outstandings as such Lender's Commitment bears to the Total Commitments, each as at the date the notice is served under Clause 25.18  ( Acceleration ).

6.6.2        If an amount outstanding under an Ancillary Facility is a contingent liability and that contingent liability becomes an actual liability or is reduced to zero after the original adjustment is made under Clause 6.6.1, then each Lender and Ancillary Lender will make a further adjustment (by making or receiving (as the case may be) corresponding transfers of rights and obligations under the Finance Documents relating to Revolving Outstandings to the extent necessary) to put themselves in the position they would have been in had the original adjustment been determined by reference to the actual liability or, as the case may be, zero liability and not the contingent liability.

6.6.3        Any transfer of rights and obligations relating to Revolving Outstandings made pursuant to this Clause 6.6 shall be made for a purchase price in cash, payable at the time of transfer, in an amount equal to those Revolving Outstandings (less

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any accrued interest, fees and commission to which the transferor will remain entitled to receive notwithstanding that transfer, pursuant to Clause 26.10  ( Pro rata interest settlement )).

6.6.4        Prior to the application of the provisions of Clause 6.6.1, an Ancillary Lender that has provided a Multi-account Overdraft shall set-off any Available Credit Balance on any account comprised in that Multi-account Overdraft.

6.6.5        All calculations to be made pursuant to this Clause 6.6 shall be made by the Agent based upon information provided to it by the Lenders and Ancillary Lenders and the Agent's Spot Rate of Exchange.

6.6.6        This Clause 6.6 shall not oblige any Lender to accept the transfer of a claim relating to an amount outstanding under an Ancillary Facility which is not denominated (pursuant to the relevant Finance Document) in Sterling for the purpose of any Utilisation or in another currency which is acceptable to that Lender.

6.7            Information

Each Borrower and each Ancillary Lender shall, promptly upon request by the Agent, supply the Agent with any information relating to the operation of an Ancillary Facility (including the Ancillary Outstandings) as the Agent may reasonably request from time to time.  Each Borrower consents to all such information being released to the Agent and the other Finance Parties.

6.8            Affiliates of Lenders as Ancillary Lenders

6.8.1       Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Lender.  In such case, the Lender and its Affiliate shall be treated as a single Lender whose Commitment is the amount set out opposite the relevant Lender's name in Part 2 or Part 3 of Schedule 1  ( The Original Parties ) and/or the amount of any Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement.  For the purposes of calculating the Lender's Available Commitment with respect to the Facility, the Lender's Commitment shall be reduced to the extent of the aggregate of the Ancillary Commitments of its Affiliates.

6.8.2       The Company shall specify any relevant Affiliate of a Lender in any notice delivered by the Company to the Agent pursuant to Clause 6.2.2(a).

6.8.3       An Affiliate of a Lender which becomes an Ancillary Lender shall accede to the Intercreditor Agreement as an Ancillary Lender and any person which so accedes to the Intercreditor Agreement shall, at the same time, become a Party as an Ancillary Lender in accordance with clause 20.5.2 ( Deeds of Accession ) of the Intercreditor Agreement.

6.8.4       If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender, its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Document.

6.8.5       Where this Agreement or any other Finance Document imposes an obligation on an Ancillary Lender and the relevant Ancillary Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate.

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6.9            Affiliates of Borrowers

6.9.1       Subject to the terms of this Agreement, an Affiliate of a Borrower may with the approval of the relevant Lender become a borrower with respect to an Ancillary Facility.

6.9.2       The Company shall specify any relevant Affiliate of a Borrower in any notice delivered by the Company to the Agent pursuant to Clause 6.2.2(a).

6.9.3        If a Borrower ceases to be a Borrower under this Agreement in accordance with Clause 28.3  ( Resignation of a Borrower ), its Affiliate shall cease to have any rights under this Agreement or any Ancillary Document.

6.9.4        Where this Agreement or any other Finance Document imposes an obligation on a Borrower under an Ancillary Facility and the relevant Borrower is an Affiliate of a Borrower which is not a party to that document, the relevant Borrower shall ensure that the obligation is performed by its Affiliate.

6.9.5        Any reference in this Agreement or any other Finance Document to a Borrower being under no obligations (whether actual or contingent) as a Borrower under such Finance Document shall be construed to include a reference to any Affiliate of a Borrower being under no obligations under any Finance Document or Ancillary Document.

6.10          Commitment amounts

Notwithstanding any other term of this Agreement, each Lender shall ensure that at all times its Commitment is not less than:-

6.10.1      its Ancillary Commitment; or

6.10.2      the Ancillary Commitment of its Affiliate.

6.11          Amendments and Waivers - Ancillary Facilities

No amendment or waiver of a term of any Ancillary Facility shall require the consent of any Finance Party other than the relevant Ancillary Lender unless such amendment or waiver itself relates to or gives rise to a matter which would require an amendment of or under this Agreement (including, for the avoidance of doubt, under this Clause 6).  In such a case, Clause 38  ( Amendments and waivers ) will apply.

 

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SECTION 4

REPAYMENT, PREPAYMENT AND CANCELLATION

7.              REPAYMENT

7.1            Repayment of Loans

7.1.1        Each Borrower which has drawn a Loan shall repay that Loan on the last day of its Interest Period.

7.1.2        Without prejudice to each Borrower's obligation under Clause 7.1.1 above, if:

(a)              one or more Loans are to be made available to a Borrower:-

(i)               on the same day that a maturing Loan is due to be repaid by that Borrower; and

(ii)              in whole or in part for the purpose of refinancing the maturing Loan; and

(b)            the proportion borne by each Lender's participation in the maturing Loan to the amount of that maturing Loan is the same as the proportion borne by that Lender's participation in the new Loan to the aggregate amount of those new Loans,

the aggregate amount of the new Loans shall , unless the Borrower notifies the Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Loan so that:-

(a)              if the amount of the maturing Loan exceeds the aggregate amount of the new Loans:-

(i)             the relevant Borrower will only be required to make a payment under Clause 32.1 ( Payments to the Agent ) in an amount in the relevant currency equal to that excess; and

(ii)            each Lender's participation in the new Loans shall be treated as having been made available  and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Loan and that Lender will not be required to make a payment under Clause 32.1 ( Payments to the Agent ) in respect of its participation in the new Loans; and

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

(i)             the relevant Borrower will not be required to make a payment under Clause 32.1 ( Payments to the Agent ); and

(ii)            each Lender will be required to make a payment under Clause 32.1 ( Payments to the Agent ) in respect of its participation in the new Loans available only to the extent that its participation in the new Loans exceeds that Lender's participation in the maturing Loan and the remainder of that Lender's participation

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in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Loan.

8.              ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION

8.1            Illegality

If, in any applicable jurisdiction, it becomes unlawful for any Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:-

8.1.1       that Lender shall promptly notify the Agent upon becoming aware of that event;

8.1.2       upon the Agent notifying the Company, each Available Commitment of that Lender will be immediately cancelled; and

8.1.3       each Borrower shall repay that Lender's participation in the Utilisations made to that Borrower on the last day of the Interest Period for each Utilisation occurring after the Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment(s) shall be cancelled in the amount of the participations repaid.

8.2            Voluntary cancellation

The Company may, if it gives the Agent not less than 10 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount and an integral multiple, of £250,000) of the Available Facility.  Any cancellation under this Clause 8.2 shall reduce the Commitments of the Lenders rateably under the Facility.

8.3            Voluntary prepayment of Utilisations

A Borrower to which a Utilisation has been made may, if it or the Company gives the Agent not less than 5 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Utilisation (but if in part, being an amount that reduces the amount of the Utilisation by a minimum amount, and an integral multiple, of £250,000).

8.4            Right of cancellation and repayment in relation to a single Lender

8.4.1        If:-

(a)            any sum payable to any Lender by an Obligor is required to be increased under Clause 15.2.3; or

(b)            any Lender claims indemnification from the Company or an Obligor under Clause 15.3  ( Tax indemnity ) or Clause 16.1  ( Increased costs ),

the Company may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender's participation in the Utilisations.

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8.4.2       On receipt of a notice referred to in Clause 8.4.1 above in relation to a Lender, the Commitment of that Lender shall immediately be reduced to zero.

8.4.3       On the last day of each Interest Period which ends after the Company has given notice under Clause 8.4.1 above in relation to a Lender (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Utilisation is outstanding shall repay that Lender's participation in that Utilisation together with all interest and other amounts accrued under the Finance Documents.

8.5            Right of cancellation in relation to a Defaulting Lender

8.5.1       If any Lender becomes a Defaulting Lender, the Parent or the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent 10 Business Days' notice of cancellation of each Available Commitment of that Lender.

8.5.2       On the notice referred to in Clause 8.5.1 above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

8.5.3       The Agent shall as soon as practicable after receipt of a notice referred to in Clause 8.5.1 above, notify all the Lenders.

9.              MANDATORY PREPAYMENT

9.1            Exit

9.1.1       For the purpose of this Clause 9.1:-

" FCA "

means the Financial Conduct Authority acting in accordance with Part 6 of the Financial Services and Markets Act 2000

" Flotation "

means:- (a)           a successful application being made for the admission of any part of the share capital of any member of the Group (or Holding Company of any member of the Group) to the Official List maintained by the FCA and the admission of any part of the share capital of any member of the Group (or Holding Company of any member of the Group) to trading on the London Stock Exchange plc or (b)           the grant of permission to deal in any part of the issued share capital of any member of the Group (or Holding Company of any member of the Group) on the Alternative Investment Market or the Main Board or the Growth Market of the ICAP Securities & Derivatives Exchange (ISDX) or on any recognised investment exchange (as that term is used in the Financial Services and Markets Act 2000) or in or on any exchange or market

 

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9.1.2        Upon the occurrence of:-

(a)             any Flotation; or

(b)             a Change of Control; or

(c)             the sale of all or substantially all of the assets of the Group whether in a single transaction or a series of related transactions,

the Facility will be cancelled and all outstanding Utilisations and Ancillary Outstandings, together with accrued interest, and all other amounts accrued under the Finance Documents, shall become immediately due and payable.

10.           RESTRICTIONS

10.1         Notices of Cancellation or Prepayment

Any notice of cancellation, prepayment, authorisation or other election given by any Party under Clause 8  ( Illegality, voluntary prepayment and cancellation ) shall (subject to the terms of that Clause) 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.

10.2         Interest and other amounts

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

10.3         Reborrowing of the Facility

Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.

10.4         Prepayment in accordance with Agreement

No Borrower shall repay or prepay all or any part of the Utilisations or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

10.5          No reinstatement of Commitments

Subject to Clause 2.2  ( Increase ), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

10.6          Agent's receipt of Notices

If the Agent receives a notice under Clause 8  ( Illegality, voluntary prepayment and cancellation ) it shall promptly forward a copy of that notice or election to either the Company or the affected Lender, as appropriate.

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10.7         Effect of Repayment and Prepayment on Commitments

If all or part of any Lender's participation in a Utilisation under the 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 Commitments (equal to the amount of the participation which is repaid or prepaid) in respect of the Facility will be deemed to be cancelled on the date of repayment or prepayment.

10.8         Application of prepayments

Any prepayment of a Loan (other than a prepayment pursuant to Clause 8.1  ( Illegality ) shall be applied pro rata to each Lender's participation in that Utilisation.

 

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SECTION 5

COSTS OF UTILISATION

11.            INTEREST

11.1          Calculation of interest

The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:-

11.1.1      Margin; and

11.1.2      LIBOR.

11.2          Payment of interest

11.2.1     The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six Monthly intervals after the first day of the Interest Period).

11.2.2     If the annual audited financial statements of the Group and related Compliance Certificate received by the Agent show that a higher Margin should have applied during a certain period, then the Company shall (or shall ensure the relevant Borrower shall) promptly pay to the Agent any amounts necessary to put the Agent and the Lenders in the position they would have been in had the appropriate rate of the Margin applied during such period.

11.3          Default interest

11.3.1     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 Clause 11.3.2 below, is 2.0 per cent per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably).  Any interest accruing under this Clause 11.3 shall be immediately payable by the Obligor on demand by the Agent.

11.3.2     If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:-

(a)            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

(b)            the rate of interest applying to the overdue amount during that first Interest Period shall be 2.0 per cent per annum higher than the rate which would have applied if the overdue amount had not become due.

11.3.3     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.

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11.4          Notification of rates of interest

11.4.1     The Agent shall promptly notify the relevant Lenders and the relevant Borrower (or the Company) of the determination of a rate of interest under this Agreement.

11.4.2     The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.

12.            INTEREST PERIODS

12.1          Selection of Interest Periods and Terms

12.1.1      A Borrower (or the Company on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan.

12.1.2     Subject to this Clause 12, a Borrower (or the Company) may select an Interest Period of one week or one, three or six months or any other period agreed between the Company and the Agent (acting on the instructions of all the Lenders in relation to the relevant Loan).

12.1.3     An Interest Period for a Loan shall not extend beyond the Termination Date.

12.1.4     Each Interest Period for a Loan shall start on the Utilisation Date.

12.1.5     A Loan has one Interest Period only.

12.2          Non‑Business Days

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).

13.            CHANGES TO THE CALCULATION OF INTEREST

13.1          Unavailability of Screen Rate

13.1.1      Interpolated Screen Rate : If no Screen Rate is available for LIBOR for the Interest Period of a Loan, the applicable LIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

13.1.2      Shortened Interest Period :  If no Screen Rate is available for LIBOR for:-

(a)             the currency of a Loan; or

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

the Interest Period of that Loan shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable LIBOR for that shortened Interest Period shall be determined pursuant to the definition of LIBOR.

13.1.3      Shortened Interest Period and Historic Screen Rate : If the Interest Period of a Loan is, after giving effect to Clause 13.1.2 above, either the applicable Fallback

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Interest Period or shorter than the applicable Fallback Interest Period and, in either case, no Screen Rate is available for LIBOR for:-

(a)            the currency of that Loan; or

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

the applicable LIBOR shall be the Historic Screen Rate for that Loan.

13.1.4      Shortened Interest Period and Interpolated Historic Screen Rate : If Clause 13.1.3 above applies but no Historic Screen Rate is available for the Interest Period of the Loan, the applicable LIBOR shall be the Interpolated Historic Screen Rate for a period equal in length to the Interest Period of that Loan.

13.1.5      Cost of funds : If Clause 13.1.4 above applies but it is not possible to calculate the Interpolated Historic Screen Rate, there shall be no LIBOR for that Loan and Clause 13.3  ( Cost of funds ) shall apply to that Loan for that Interest Period.

13.2          Market disruption

If before close of business in London on the date falling three Business Days after the Quotation Day for the relevant Interest Period of the Loan, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of LIBOR, then Clause 13.3  ( Cost of funds ) shall apply to that Loan for the relevant Interest Period.

13.3          Cost of funds

13.3.1     If this Clause 13.3 applies, then the rate of interest on each Lender's share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:-

(a)            the Margin; and

(b)            the rate notified to the Agent by that Lender as soon as practicable and in any event by close of business on the date falling 3 Business Days after the Quotation Day (or, if earlier, on the date falling 3 Business Days before the date on which interest is due to be paid in respect of that Interest Period) to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select.

13.3.2     If this Clause 13.3 applies and the Agent or the Company so requires, the Agent and the Company shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

13.3.3     Any alternative basis agreed pursuant to Clause 13.3.2 above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.

13.3.4     If this Clause 13.3 applies pursuant to Clause 13.2  ( Market disruption ) and:-

(a)              a Lender's Funding Rate is less than LIBOR; or

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(b)              a Lender does not supply a quotation by the time specified in Clause 13.3.1 above,

the cost to that Lender of funding its participation in that Loan for that Interest Period shall be deemed, for the purposes of Clause 13.3.1 above, to be LIBOR.

13.4          Notification to Company

If Clause 13.3  ( Cost of funds ) applies the Agent shall, as soon as is practicable, notify the Company.

13.5          Break Costs

13.5.1     Each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

13.5.2     Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

14.            FEES

14.1          Commitment fee

14.1.1     The Company shall pay to the Agent (for the account of each Lender) a fee in Sterling computed at the rate of 35 per cent of the applicable Margin per annum on that Lender's Available Commitment for the Availability Period.

14.1.2     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.

14.2          Arrangement fee

The Company shall pay to the Arrangers (for their own account) an arrangement fee in the amount and at the times agreed in a Fee Letter.

14.3          Agency fee

The Company shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

14.4          Security Agent fee

The Company shall pay to the Security Agent (for its own account) a security agent fee in the amount and at the times agreed in a Fee Letter.

14.5          Interest, commission and fees on Ancillary Facilities

The rate and time of payment of interest, commission, fees and any other remuneration in respect of each Ancillary Facility shall be determined by agreement between the relevant Ancillary Lender and the Borrower of that Ancillary Facility based upon normal market rates

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and terms (provided that the rate and time of payment of interest, commission, fees and any other remuneration in respect of the same-day access LIBOR facility referred to in clause 6.2.1 shall be on terms no more onerous than the Facility as at the Third Amendment and Restatement Date).

 

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Unless a contrary indication appears, in this Clause 15 a reference to " determines " or " determined " means a determination made in the absolute discretion of the person making the determination.

15.2          Tax gross‑up

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

15.2.2     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 Agent accordingly.  Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender.  If the Agent receives such notification from a Lender it shall notify the Company and that Obligor.

15.2.3     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.

15.2.4     A payment shall not be increased under Clause 15.2.3 above by reason of a Tax Deduction on account of Tax imposed by the United Kingdom, if on the date on which the payment falls due:-

(a)            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

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(b)             the relevant Lender is a Qualifying Lender solely by virtue of sub-clause (a)(ii) of the definition of Qualifying Lender and:-

(i)             an officer of HM Revenue & Customs has given (and not revoked) a direction (a " Direction ") under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment or from the Company a certified copy of that Direction; and

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

(c)            the relevant Lender is a Qualifying Lender solely by virtue of sub-clause (a)(ii) of the definition of Qualifying Lender and:-

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

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

(d)            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 Clauses 15.2.7  or 15.2.9 (as applicable) below.

15.2.5     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.

15.2.6     Within thirty 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 Agent for the Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

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

15.2.8

(a)            A Treaty Lender which is an Original Lender and holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Part 2 of Schedule 1  ( The Original Parties ); and

(b)            A Treaty Lender which is not an Original Lender and holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that

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scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the documentation which it executes on becoming a Party as a Lender,

and, having done so, that Lender shall be under no obligation pursuant to Clause 15.2.7 above.

15.2.9      If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with Clause 15.2.8 above and:

(a)            that Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or

(b)            the Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:

(i)             the Borrower DTTP Filing has been rejected by HM Revenue & Customs; or

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

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

15.2.10   If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with Clause 15.2.8 above, no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender's Commitment(s) or its participation in any Loan unless the Lender otherwise agrees.

15.2.11   The Company shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Agent for delivery to the relevant Lender.

15.2.12   A UK Non‑Bank Lender which is an Original Lender gives a Tax Confirmation to the Company by entering into this Agreement.

15.2.13   A UK Non‑Bank Lender shall promptly notify the Company and the Agent if there is any change in the position from that set out in the Tax Confirmation.

15.3          Tax indemnity

15.3.1     The Company shall (within three Business Days of demand by the 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.

15.3.2     Clause 15.3.1 above shall not apply:-

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

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

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

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

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

(i)               is compensated for by an increased payment under Clause 15.2  ( Tax gross‑up );

(ii)              would have been compensated for by an increased payment under Clause 15.2  ( Tax gross‑up ) but was not so compensated solely because one of the exclusions in Clause 15.2.4 applied; or

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

15.3.3      A Protected Party making, or intending to make a claim under Clause 15.3.1 above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Company.

15.3.4      A Protected Party shall, on receiving a payment from an Obligor under this Clause 15.3, notify the Agent.

15.4          Tax Credit

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

15.4.1     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

15.4.2     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.

15.5          Lender Status Confirmation

Each Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate, in the documentation which it executes on becoming a Party, and for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls in:-

15.5.1      not a Qualifying Lender;