exv10w9






Exhibit 10.9









Enstar Group Limited

and certain of its Subsidiaries




and



National Australia Bank Limited

and

Barclays Corporate

as Arrangers




and




National Australia Bank Limited

as Agent and Security Agent




US$250,000,000 Revolving Credit Facility Agreement




Execution Text









 









 








Contents




	 	 	 	 	 

	1 Definitions and Interpretation
	 	 	1	 
	2 The Facilities
	 	 	20	 
	3 Purpose
	 	 	21	 
	4 Conditions of Loans
	 	 	22	 
	5 Loans
	 	 	22	 
	6 Repayment
	 	 	23	 
	7 Illegality, Voluntary Prepayment and Cancellation
	 	 	23	 
	8 Mandatory Prepayment
	 	 	24	 
	9 Restrictions
	 	 	26	 
	10 Interest
	 	 	27	 
	11 Interest Periods
	 	 	28	 
	12 Changes To The Calculation Of Interest
	 	 	28	 
	13 Fees
	 	 	29	 
	14 Tax Gross Up And Indemnities
	 	 	30	 
	15 Increased Costs
	 	 	36	 
	16 Indemnities
	 	 	37	 
	17 Mitigation By The Lenders
	 	 	38	 
	18 Guarantee and Indemnity
	 	 	39	 
	19 Costs And Expenses
	 	 	42	 
	20 Representations
	 	 	43	 
	21 Information Undertakings
	 	 	50	 
	22 Financial Covenants
	 	 	56	 
	23 General Undertakings
	 	 	59	 
	24 Events Of Default
	 	 	67	 
	25 Changes To The Lenders
	 	 	71	 
	26 Changes To The Obligors
	 	 	76	 
	27 Role Of The Agent, The Arrangers, The Security Agent And Others
	 	 	78	 
	28 Conduct Of Business By The Finance Parties
	 	 	85	 
	29 Sharing Among The Finance Parties
	 	 	86	 
	30 Payment Mechanics
	 	 	87	 
	31 Set-Off
	 	 	90	 
	32 Notices
	 	 	91	 
	33 Calculations And Certificates
	 	 	93	 
	34 Partial Invalidity
	 	 	94	 
	35 Remedies And Waivers
	 	 	94	 
	36 Amendments And Waivers
	 	 	94	 






 









 






	 	 	 	 	 

	37 Confidentiality
	 	 	95	 
	38 Counterparts
	 	 	99	 
	39 Governing Law
	 	 	99	 
	40 Enforcement
	 	 	99	 
	Schedule 1 The Original Parties
	 	 	101	 
	Schedule 2 Conditions Precedent
	 	 	103	 
	Schedule 3 Requests
	 	 	109	 
	Schedule 4 Mandatory Cost Formula
	 	 	110	 
	Schedule 5 Form of Transfer Certificate
	 	 	113	 
	Schedule 6 Form of Assignment Agreement
	 	 	117	 
	Schedule 7 Form of Accession Letter
	 	 	121	 
	Schedule 8 Form of Compliance Certificate
	 	 	122	 
	Schedule 9 LMA Form of Confidentiality Undertaking
	 	 	124	 
	Schedule 10 Timetables
	 	 	128	 
	Schedule 11 Security Agent
	 	 	129	 
	Schedule 12 Material Companies
	 	 	137	 
	Schedule 13 Existing Security
	 	 	139	 
	Schedule 14 Permitted Transfers
	 	 	142	 






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Revolving Credit Facility Agreement




Dated
June 13, 2011




Between:





	(1)	 	Enstar Group Limited, a company incorporated under the laws of Bermuda with registered number
EC30916 (the Parent);
	 
	(2)	 	The members of the Group listed in Part 2 of Schedule 1 (The Original Parties) as Original
Guarantors (the Original Guarantors);
	 
	(3)	 	National Australia Bank Limited and Barclays Corporate, the corporate banking division
of Barclays Bank PLC, as bookrunners and mandated lead arrangers (each an Arranger and
together the Arrangers);
	 
	(4)	 	The Financial Institutions listed in Part 3 and Part 4 of Schedule 1 (The Original Parties)
as lenders (the Original Lenders);
	 
	(5)	 	National Australia Bank Limited as agent of the other Finance Parties (the Agent); and
	 
	(6)	 	National Australia Bank Limited as Security Agent for the Secured Parties.





It is agreed:





	1	 	Definitions and Interpretation
	 
	1.1	 	Definitions






	 	 	In this Agreement:
	 
	 	 	Acceptable Bank means 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 A1 or higher by Moody’s Investor
Services Limited or a comparable rating from an internationally recognised credit rating
agency or any other bank or financial institution approved by the Agent.
	 
	 	 	Accession Letter means a document substantially in the form set out in Schedule 7 (Form
of Accession Letter).
	 
	 	 	Account Bank means Barclays Bank PLC.
	 
	 	 	Accounting Principles means:






	 	(a)	 	in relation to any Obligor incorporated in Bermuda or in any state of the
United States of America, generally accepted accounting principles in the United
States of America;
	 
	 	(b)	 	in relation to any Obligor incorporated in the United Kingdom, generally
accepted accounting principles in the United Kingdom; or
	 
	 	(c)	 	in relation to any Obligor other than those mentioned in paragraphs (a)
and (b) above, generally accepted accounting principles in its place
of incorporation.






	 	 	Additional Cost Rate has the meaning given to it in Schedule 4 (Mandatory Cost Formula).




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	 	 	Additional Borrower means a company which becomes an Additional Borrower in accordance with Clause
26 (Changes to the Obligors).
	 
	 	 	Additional Guarantor means a company which becomes an Additional Guarantor in accordance with
Clause 26 (Changes to the Obligors).
	 
	 	 	Additional Obligor means an Additional Borrower or an Additional Guarantor.
	 
	 	 	Additional Security Agent has the meaning given to it in Schedule 11 (Security Agent).
	 
	 	 	Affiliate means, in relation to any person, a Subsidiary or a Holding Company of that person or
any other Subsidiary of that Holding Company.
	 
	 	 	Agent’s Spot Rate of Exchange means the Agent’s spot rate of exchange 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.
	 
	 	 	Assignment Agreement means an agreement substantially
in the form set out in Schedule 6 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee.
	 
	 	 	Auditors means one of PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte or such other firm
approved in advance by the Majority Lenders (such approval not to be unreasonably withheld or
delayed).
	 
	 	 	Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation or registration.
	 
	 	 	Availability Period means the period from and including the date of this Agreement to and
including the date falling one month prior to the Termination Date.
	 
	 	 	Available Commitment means a Lender’s Commitment minus:






	 	(a)	 	the Base Currency Amount of its participation in any outstanding Loans; and
	 
	 	(b)	 	in relation to any proposed Loan, the Base Currency Amount of its participation
in any Loans that are due to be made on or before the proposed
Utilisation Date,
	 
	 	other than that Lender’s participation in any Loans that are due to be repaid or prepaid on or
before the proposed Utilisation Date.






	 	 	Available Facility means the aggregate for the time being of each Lender’s Available Commitment.
	 
	 	 	Base Currency means US Dollars.
	 
	 	 	Base Currency Amount means, in relation to a Loan, the amount specified in the Utilisation Request
delivered by a Borrower for that Loan adjusted to reflect any repayment or prepayment of the Loan.
	 
	 	 	Borrower means the Parent or an Additional Borrower unless it has ceased to be a Borrower in
accordance with Clause 26 (Changes to the Obligors).
	 
	 	 	Break Costs means the amount (if any) by which:






	 	(a)	 	the interest, excluding the Margin, which a Lender should have received for the period
from the date of receipt of all or any part of its participation in a




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	 	 	Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan
or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of
that Interest Period;






	 	 	exceeds:






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






	 	 	Budget means:






	 	(a)	 	in relation to the period beginning on 1 January 2011 and ending on 31 December 2014, the
financial model including profit and loss, balance sheet and cashflow projections relating to
the Group to be delivered by the Parent to the Agent pursuant to Clause 4.1 (Initial
conditions precedent); and
	 
	 	(b)	 	in relation to any other period, any annual Capital Release Schedule delivered by the
Parent to the Agent in respect of that period pursuant to Clause 21.5
(Budget).






	 	 	Business Day means a day (other than a Saturday or Sunday) on which banks are open for general
business in London, Hamilton, Bermuda and New York.
	 
	 	 	Capital Release Amount means, in respect of any member of the Group, any reduction in the amount
of capital resources which that member of the Group is required to hold in accordance with
applicable law and applicable rules and guidance given by any governmental or regulatory
authority.
	 
	 	 	Capital Release Schedule means a schedule detailing the expected Capital Release Amounts in
relation to each member of the Group.
	 
	 	 	Cash means, at any time, cash denominated in freely transferable and freely convertible currency
in hand or at bank and (in the latter case) credited to an account in the name of a member of the
Group with an Acceptable Bank and to which a member of the Group is alone (or together with other
members of the Group) beneficially entitled and for so long as:






	 	(a)	 	that cash is repayable on demand;
	 
	 	(b)	 	there is no Security over that cash except for Transaction Security or any Permitted Security
constituted by a netting or set-off arrangement entered into by members of the Group
in the ordinary course of their banking arrangements.






	 	 	Cash Equivalent Investments means at any time:






	 	(a)	 	certificates of deposit maturing within one year after the relevant date of calculation and
issued by an Acceptable Bank;
	 
	 	(b)	 	any investment in marketable debt obligations issued or guaranteed by the government of the
United States of America, the United Kingdom, any member state of the European Economic Area
or any Participating Member State or by an instrumentality or agency of any of them having an
equivalent credit rating, maturing within one year after the relevant date of calculation and
not convertible or exchangeable to any other security;




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	 	(c)	 	commercial paper not convertible or exchangeable to any other security:






	 	(i)	 	for which a recognised trading market exists;
	 
	 	(ii)	 	issued by an issuer incorporated in the United States of
America, the United Kingdom, any member state of the European Economic Area or
any Participating Member State;
	 
	 	(iii)	 	which matures within one year after the relevant date of
calculation; and
	 
	 	(iv)	 	which has a credit rating of either A-1 or higher by Standard &
Poor’s Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by
Moody’s Investor Services Limited, or, if no rating is available in respect of
the commercial paper, the issuer of which has, in respect of its long-term
unsecured and non-credit enhanced debt obligations, an equivalent rating;






	 	(d)	 	Sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an
Acceptable Bank (or their dematerialised equivalent);
	 
	 	(e)	 	any investment accessible within 30 days in money market funds which have a credit rating of
either A-1 or higher by Standard & Poor’s Rating Services or F1 or higher by Fitch Ratings
Ltd or P-1 or higher by Moody’s Investor Services Limited and which invest substantially all
their assets in securities of the types described in sub-paragraphs (a) to (d) above; or
	 
	 	(f)	 	any other debt security approved by the Majority Lenders,






	 	 	in each case, to which any member of the Group is alone (or together with other members of the
Group) beneficially entitled at that time and which is not issued or guaranteed by any member of
the Group or subject to any Security (other than Security arising under the Transaction Security
Documents).
	 
	 	 	Change of Control means any person or group of persons acting in concert gaining Control of the
Parent (where “acting in concert” has the meaning given to it in the City Code on Takeovers and
Mergers).
	 
	 	 	Charged Property means all of the assets of the Obligors which from time to time are, or are
expressed to be, the subject of the Transaction Security.
	 
	 	 	Chief Financial Officer means the chief financial officer of the relevant company or the Group
from time to time (or any director of the relevant company or the Group acting as such officer’s
deputy in that capacity or performing those functions).
	 
	 	 	Close Links Report means a report submitted by an insurer to the FSA under SUP 16.5.4 or under any
rules amending or replacing it.






	 	 	Commitment means:






	 	(a)	 	in relation to an Original Lender, the amount in the Base Currency set opposite its name
under the heading “Commitments” in Part 3 and Part 4 of Schedule 1 (The Original Parties) and
the amount of any other Commitment transferred to it under this Agreement; and
	 
	 	(b)	 	in relation to any other Lender, the amount in the Base Currency of any Commitment
transferred to it under this Agreement,




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	 	 	to the extent not cancelled, reduced or transferred by it under this Agreement.






	 	 	Compliance Certificate means a certificate substantially in the form set out in Schedule 8 (Form
of Compliance Certificate).
	 
	 	 	Confidential Information means all information relating to the Parent, any Obligor or the Group,
the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as,
or for the purpose of becoming, a Finance Party or which is received by a Finance Party in
relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the
Facility from either:






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






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






	 	(i)	 	is or becomes public information other than as a direct or
indirect result of any breach by that Finance Party of Clause 37
(Confidentiality); or
	 
	 	(ii)	 	is identified in writing at the time of delivery as
non-confidential by any member of the Group or any of its advisers; or
	 
	 	(iii)	 	is known by that Finance Party before the date the information is
disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully
obtained by that Finance Party after that date, from a source which is, as far
as that Finance Party is aware, unconnected with the Group and which, in either
case, as far as that Finance Party is aware, has not been obtained in breach of,
and is not otherwise subject to, any obligation of confidentiality.






	 	 	Confidentiality Undertaking means a confidentiality undertaking substantially in a recommended form
of the LMA as set out in Schedule 9 (LMA Form of Confidentiality Undertaking) or in any other form
agreed between the Parent and the Agent.
	 
	 	 	Consolidated Tangible Net Worth has the meaning given
to it in Clause 22.1 (Financial definitions).
	 
	 	 	Constitutional Documents means, in relation to an Obligor, the memorandum of association and the
articles of association or bye-laws, and/or (as appropriate) such other constitutional documents
as required from time to time by the law of the place of incorporation (or any internal
requirements) of the relevant Obligor.






	 	 	Control means:






	 	(a)	 	the power (whether by way of ownership of shares, proxy, contract, agency or otherwise)
to:






	 	(i)	 	cast, or control the casting of, more than 50% of the maximum number of
votes that might be cast at a general meeting of the company;




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	 	(ii)	 	appoint or remove all, or the majority, of the directors or other
equivalent officers of the company; or
	 
	 	(iii)	 	give directions with respect to the operating and financial policies of the
company with which the directors or other equivalent officers of the company are
obliged to comply; or






	 	(b)	 	the holding beneficially of more than 50% of the issued share capital of the company
(excluding any part of that issued share capital that carries no right to participate beyond a
specified amount in a distribution of either profits or capital).






	 	CRA Account Charge means a fixed charge given by the Parent over each CRA Account.
	 
	 	CRA Accounts means each US Dollar, Sterling and/or Australian Dollar bank account held with the
Account Bank in the name of the Parent and into which amounts received in respect of any Capital
Release Amount are paid.
	 
	 	CTA means the Corporation Tax Act 2009.
	 
	 	Debt Purchase Transaction means, in relation to a person, a transaction where such person:






	 	(a)	 	purchases by way of assignment or transfer;
	 
	 	(b)	 	enters into any sub-participation in respect of; or
	 
	 	(c)	 	enters into any other agreement or arrangement having an economic effect substantially
similar to a sub-participation in respect of,






	 	any Commitment or amount outstanding under this Agreement.






	 	 	Default means an Event of Default or any event or circumstance specified in Clause 24 (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.
	 
	 	 	Delegate means any delegate, agent, attorney or co-trustee appointed by the Security Agent.
	 
	 	 	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 the 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,




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	 	 	and which (in either such case) is not caused by, and is beyond the control of, the Party
whose operations are disrupted.
	 
	 	 	Event of Default means any event or circumstance specified as such in Clause 24 (Events of
Default).
	 
	 	 	Existing Facilities means:






	 	(a)	 	the US$184,616,000 term facility agreement dated 3 October 2008 between, among others,
Royston Run-off Limited as borrower, National Australia Bank Limited and Barclays Bank PLC as
arrangers and original lenders and National Australia Bank Limited as agent and security
agent, as amended and restated from time to time;
	 
	 	(b)	 	the US$21,400,000 term facility agreement dated 19 April 2010 between, among others, Knapton
Holdings Limited as borrower and National Australia Bank Limited as lender; and
	 
	 	(c)	 	the US$115,000,000 term facility agreement dated 29 December 2010 between, among others,
Enstar Group Limited as borrower, the subsidiaries of Enstar Group Limited listed therein
as original guarantors, Barclays Corporate as mandated lead arranger and Barclays Bank PLC
as original lender, agent and security agent.






	 	 	Existing Security means the security granted by members of the Group prior to the date of this
Agreement and listed in Schedule 13 (Existing Security).
	 
	 	 	Facility means the revolving credit facility made available under this Agreement as described in
Clause 2.1 (The Facility).
	 
	 	 	Facility Office means:






	 	(a)	 	in respect of a Lender, the office or offices notified by that Lender to the 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; or
	 
	 	(b)	 	in respect of any other Finance Party, the office in the jurisdiction in which it is resident
for tax purposes.






	 	 	Fee Letter means:






	 	(a)	 	any letter or letters dated on or about the date of this Agreement between National
Australia Bank Limited and Barclays Corporate in its capacity as Arranger and the Parent (or
the Agent and the Parent or the Security Agent and the Parent) setting out any of the fees
referred to in Clause 13 (Fees); and
	 
	 	(b)	 	any agreement setting out fees payable to a Finance Party under any Finance Document.






	 	 	Finance Document means this Agreement, any Accession Letter, any Compliance Certificate, any Fee
Letter, any Transaction Security Document, any Utilisation Request and any other document
designated as a Finance Document by the Agent and the Parent.
	 
	 	 	Finance Party means the Agent, the Arrangers, the Security Agent or a Lender. 
	 
	 	 	Financial Indebtedness means any indebtedness for or in respect of:




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	 	(a)	 	moneys borrowed and debit balances at banks or other financial institutions;
	 
	 	(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 the Accounting Principles, be treated as a finance or capital lease;
	 
	 	(e)	 	receivables sold or discounted (other than any receivables to the extent they are sold on a
non-recourse basis);
	 
	 	(f)	 	any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only
the marked to market value as at the relevant date on which Financial Indebtedness is
calculated (or, if any actual amount is due as a result of the termination or close-out of
that Treasury Transaction, that amount) shall be taken into account);
	 
	 	(g)	 	any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary
letter of credit or any other instrument issued by a bank or financial institution;
	 
	 	(h)	 	any amount of any liability under an advance or deferred purchase agreement if (1) one of the
primary reasons behind entering into the agreement is to raise finance or (2) the agreement is
in respect of the supply of assets or services and payment is due more than 90 days after the
date of supply;
	 
	 	(i)	 	any amount raised under any other transaction (including any forward sale or purchase, sale
and sale back or sale and leaseback agreement) having the commercial effect of a borrowing;
and
	 
	 	(j)	 	the amount of any liability in respect of any guarantee for any of the items referred to in
paragraphs (a) to (i) above.






	 	 	Financial Quarter has the meaning given to that term in Clause 22.1 (Financial definitions).
	 
	 	 	Financial Year has the meaning given to that term in Clause 22.1 (Financial definitions).
	 
	 	 	First Utilisation Date means the first Utilisation Date.
	 
	 	 	FSA means the UK Financial Services Authority and any body which from time to time replaces such
authority or body.
	 
	 	 	FSA Returns means the documents required (taken together) to be filed by an insurer with the FSA
under Rule 9.6(1) of IPRU(INS) or as may be defined in any rules amending or replacing it.
	 
	 	 	FSA Rules means the FSA’s Handbook of Rules and Guidance as amended, varied, substituted or
replaced from time to time including, without limitation, GENPRU, IPRU(INS), INSPRU and SUP and
including the rules of any other regulator which is responsible from time to time for the
prudential supervision of insurers authorised in the United Kingdom.




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	 	 	GENPRU means the General Prudential Sourcebook forming part of the FSA Rules.
	 
	 	 	Group means the Parent and each of its Subsidiaries for the time being.
	 
	 	 	Group Capital Resources Report means any group capital resources report submitted to the FSA in
accordance with IPRU(INS), rule 9.40 or as may be defined in any rules amending or replacing it.
	 
	 	 	Group Structure Chart means the most recent group structure chart of the Group delivered to the
Original Lender by the Parent prior to the First Utilisation Date.
	 
	 	 	Guarantor means an Original Guarantor or an Additional Guarantor.
	 
	 	 	Holding Account means any account designated as a Holding Account (in the name of the Parent and
held with the Agent) by the Agent and the Parent as the same may be redesignated, substituted or
replaced from time to time.
	 
	 	 	Holding Company means, in relation to a company or corporation, any other company or corporation in
respect of which it is a Subsidiary.
	 
	 	 	ICA Capital Requirement means, in respect of an insurer, the amount of capital resources which the
board of that insurer considers are required by that insurer in order to have a 99.5% confidence
level over a one year timeframe that the value of assets of that insurer will exceed the value of
its liabilities, determined in accordance with INSPRU 7, and, following the implementation of
Solvency II, shall mean the SCR (as defined in Solvency II) of that insurer as supplemented by any
additional capital resources identified as required by that insurer’s Own Risk and Solvency
Assessment (as defined in Solvency II).
	 
	 	 	ICG Capital Requirement means, in respect of an insurer, the aggregate of: (a) the ICA Capital
Requirement of that insurer; and (b) the amount of capital resources which the FSA indicates in any
formal guidance given by it to that insurer or to any member of the Group that it considers that
insurer should hold in addition to its ICA Capital Requirement, or which should be held by the
Group as a whole in respect of that insurer in addition to that insurer’s ICA Capital Requirement,
and, following the implementation of Solvency II, shall mean the aggregate of any capital add-ons
(as defined in Solvency II) prescribed by the FSA or any other regulator in respect of that
insurer.
	 
	 	 	Insolvency Representative means any liquidator, administrator, receiver, receiver and manager,
administrative receiver, custodian, trustee or similar officer in any jurisdiction.
	 
	 	 	INSPRU means the Prudential Sourcebook for Insurers forming part of the FSA Rules.
	 
	 	 	INSPRU(INS) means the Interim Prudential Sourcebook for Insurers, forming part of the FSA Rules.
	 
	 	 	Intellectual Property means:






	 	(a)	 	any patents, trade marks, service marks, designs, business names, copyrights,
design rights, moral rights, inventions, confidential information, knowhow and other
intellectual property rights and interests, whether registered or unregistered; and
	 
	 	(b)	 	the benefit of all applications and rights to use such assets of each member of the Group.




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	 	 	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 10.3 (Default Interest).
	 
	 	 	Investment Policy means the Group’s investment policy as detailed in the document entitled
‘Investment Policy and Procedures, Version 8.0 —
February 3, 2010’.
	 
	 	 	ITA means the Income Tax Act 2007.
	 
	 	 	Joint Venture means any joint venture entity, whether a company, unincorporated firm, undertaking,
association, joint venture or partnership or any other similar entity.
	 
	 	 	Legal Opinion means any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions
precedent) or Clause 26 (Changes to the Obligors).






	 	 	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 Acts, 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 the Legal Opinions.






	 	 	Lender means:






	 	(a)	 	any Original Lender; and
	 
	 	(b)	 	any bank, financial institution, trust, fund or other entity which has become a Party as a
Lender in accordance with Clause 25 (Changes to the Lenders),






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






	 	 	LIBOR means, in relation to any Loan:






	 	(a)	 	the applicable Screen Rate; or
	 
	 	(b)	 	(if no Screen Rate is available for the currency or Interest Period of that Loan) the
arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent
at its request quoted by the Reference Banks to leading banks in the London interbank market,






	 	 	as of the Specified Time on the Quotation Day for the currency of that Loan and for a period
comparable to the Interest Period for that Loan.






	 	 	Limitation Acts means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.




10









 






	 	 	LMA means the Loan Market Association.
	 
	 	 	Loan means a loan made or to be made under the Facility or the principal amount outstanding for
the time being of that loan.
	 
	 	 	Majority Lenders means:






	 	(a)	 	if there are no Loans outstanding, a Lender or Lenders whose Commitments aggregate more than
662/3% of the Total Commitments (or, if the Total Commitments have been
reduced to zero, aggregated more than 662/3% of the Total Commitments
immediately prior to the reduction); or
	 
	 	(b)	 	at any other time, a Lender or Lenders whose participations in the Loans then outstanding
aggregate more than 662/3% of all the Loans then outstanding.






	 	Mandatory Cost means the percentage rate per annum calculated by the Agent in accordance with
Schedule 4 (Mandatory Cost Formula).
	 
	 	Mandatory Prepayment Account means the interest-bearing account in the name of the Parent held
with the Agent at 88 Wood Street, London EC2V 7QQ, Sort Code: 16-55-90 and Account number:
3505-159727-501 (as the same may be redesignated, substituted or replaced from time to time).
	 
	 	Margin means 2.75 (two point seven five) per cent, per
annum.
	 
	 	Material Adverse Effect means a material adverse effect on:






	 	(a)	 	the business, operations, property, condition (financial or otherwise) or prospects of
the Group taken as a whole; or
	 
	 	(b)	 	the ability of an Obligor to perform its payment obligations under the Finance Documents
and/or its obligations under Clause 22.2 (Financial condition); or
	 
	 	(c)	 	the validity or enforceability of, or the effectiveness or ranking of any Security granted
or purporting to be granted pursuant to any of, the Finance Documents or the rights
or remedies of any Finance Party under any of the Finance Documents.






	 	 	Material Company means:






	 	(a)	 	each company listed in Schedule 12 (Material Companies) whilst such company remains a member
of the Group; and
	 
	 	(b)	 	any other member of the Group whose shares become subject to
the Transaction Security pursuant to Clause 26.5 (Additional Material Companies).






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






	 	(a)	 	(subject to paragraph (c) 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;
	 
	 	(b)	 	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




11









 







	 	(c)	 	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.






	 	 	The above rules will only apply to the last Month of any period. Monthly shall be construed
accordingly.
	 
	 	 	Obligor means a Borrower or a Guarantor.
	 
	 	 	Obligors’ Agent means the Parent, appointed to act on behalf of each Obligor in relation to the
Finance Documents pursuant to Clause 2.3 (Obligors’ Agent).
	 
	 	 	Original Financial Statements means:






	 	(a)	 	the consolidated audited financial statements of Cumberland Holdings Limited and
each Obligor for its Financial Year ended 31 December 2009 or, if such person is not required
to produce consolidated audited financial statements and has not done so for its Financial
Year ended 31 December 2009, its consolidated management schedules for such period which shall
include, without limitation, a balance sheet, profit and loss account and cashflow statement;
and
	 
	 	(b)	 	the audited financial statements of each Obligor and each Material Company for its Financial
Year ended 31 December 2009.






	 	 	Participating Member State means any member state of the European Communities that adopts or has
adopted the euro as its lawful currency in accordance with legislation of the European Community
relating to Economic and Monetary Union.
	 
	 	 	Party means a party to this Agreement.
	 
	 	 	Permitted Acquisition means:






	 	(a)	 	any acquisition of a company, entity, business or undertaking (or in each case, any interest
in any of them):






	 	(i)	 	that is a Regulated Insurance Entity or an insurance portfolio;
	 
	 	(ii)	 	that is acquired by a member of the Group wholly owned by the
Parent;
	 
	 	(iii)	 	whose underlying insurance exposures must be represented by
recognised non-life business only; and
	 
	 	(iv)	 	that would not cause the Net Worth Cover to be less than or
equal to 2.0:1; or






	 	(b)	 	any acquisition of new business effected through a portfolio transfer or reinsurance
transaction involving the capitalisation of reinsurance segregated accounts in the non-life
run-off sector (whether funded by way of subscription of share capital, by way of contributed
surplus or otherwise).






	 	 	Permitted Disposal means any sale, lease, licence, transfer or other disposal made on arm’s length
terms:






	 	(a)	 	made by any member of the Group in the ordinary course of trading of the disposing entity
(other than shares, businesses, real property or Intellectual Property);




12









 







	 	(b)	 	of any asset by an Obligor or Material Company (the Disposing Company) to another Obligor
or Material Company (the Acquiring Company), but if:






	 	(i)	 	the Disposing Company is an Obligor, the Acquiring Company must
also be an Obligor;
	 
	 	(ii)	 	the Disposing Company had given Transaction Security over the
asset, the Acquiring Company must give equivalent Security to the Security Agent
over that asset; and
	 
	 	(iii)	 	the Disposing Company is a Guarantor, the Acquiring Company must
be a Guarantor guaranteeing at all times an amount no less than that guaranteed
by the Disposing Company;






	 	(c)	 	of assets (other than shares, businesses, real property or Intellectual Property) in
exchange for other assets comparable or superior as to type, value and quality);
	 
	 	(d)	 	of obsolete or redundant vehicles, plant and equipment for cash;
	 
	 	(e)	 	of Cash Equivalent Investments for cash or in exchange for other Cash Equivalent Investments;
or
	 
	 	(f)	 	arising as a result of any Permitted Security.






	 	 	Permitted Financial Indebtedness means Financial Indebtedness arising under:






	 	(a)	 	the Existing Facilities;
	 
	 	(b)	 	a Permitted Loan;
	 
	 	(c)	 	a Permitted Guarantee;
	 
	 	(d)	 	any Finance Document;
	 
	 	(e)	 	Financial Indebtedness incurred by a member of the Group to facilitate the transfer of any
Capital Release Amount as required pursuant to Clause 23.29 (Transfer of Capital Release
Amount), provided that the relevant loan is subordinated to the Facility on terms acceptable
to the Agent; or
	 
	 	(f)	 	any Financial Indebtedness of any Target Group existing at the date of the relevant
acquisition.






	 	 	Permitted Guarantee means:






	 	(a)	 	any guarantee of Permitted Financial Indebtedness which is referred to in the definition
of, or otherwise constitutes, Permitted Financial Indebtedness provided that Clause
23.25 (Intra-Group transactions) is complied with; or
	 
	 	(b)	 	any guarantee given in respect of the netting or set-off arrangements permitted pursuant to
paragraph (a) of the definition of Permitted Security,






	 	 	provided that no new guarantee will be permitted at any time after the occurrence of a Default
which is continuing.
	 
	 	 	Permitted Loan means:






	 	(a)	 	Financial Indebtedness which is referred to in the definition of, or otherwise constitutes,
Permitted Financial Indebtedness provided Clause 23.25 (Intra-Group transactions) is complied
with;




13









 












	 	(b)	 	any loan permitted by Clause 23.25 (Intra-Group transactions);
	 
	 	(c)	 	any loan made by a member of the Group to facilitate the transfer of any Capital Release
Amount as required pursuant to Clause 23.29 (Transfer of Capital Release Amount), provided
that such loan is subordinated to the Facility on terms acceptable to the Agent;
	 
	 	(d)	 	any loan made by an Obligor to an Obligor;
	 
	 	(e)	 	any loan made by a Material Company to a Material Company or an Obligor;
	 
	 	(f)	 	any loan provided by an Obligor to a member of the Group in order to effect a Permitted
Acquisition or any other acquisition not prohibited under this Agreement the consideration
for which is not being funded through the proceeds of the Facility;
	 
	 	(g)	 	any loan invested pursuant to Clause 22.4 (Equity cure- Regulatory Cover) or Clause 22.5
(Equity cure- Net Worth Cover); or
	 
	 	(h)	 	any loan made with the prior written consent of the Agent.






	 	 	Permitted Security means:






	 	(a)	 	any netting or set-off arrangement entered into by any member of the Group in the ordinary
course of its banking arrangements for the purpose of netting debit and credit balances of
members of the Group but only so long as (1) such arrangement does not permit credit balances
of Obligors to be netted or set-off against debit balances of members of the Group which are
not Obligors and (2) such arrangement does not give rise to other Security over the assets of
Obligors in support of liabilities of members of the Group which are not Obligors;
	 
	 	(b)	 	any Quasi Security arising as a result of a disposal which is a Permitted Disposal;
	 
	 	(c)	 	any Transaction Security;
	 
	 	 	 	(i) any Existing Security;
	 
	 	(d)	 	any lien arising by operation of law and in the ordinary course of trading and not as a
result of any default or omission by any member of the Group;
	 
	 	(e)	 	any Security or Quasi-Security over or affecting any asset acquired by a member of the Group
after the date of this Agreement if:






	 	(i)	 	the Security or Quasi-Security was not created in contemplation of the
acquisition of that asset by a member of the Group;
	 
	 	(ii)	 	the principal amount secured has not been increased in contemplation of or
since the acquisition of that asset by a member of the Group; and
	 
	 	(iii)	 	the Security or Quasi-Security is removed or discharged within 3 months of
the date of acquisition of such asset;






	 	(f)	 	any Security or Quasi-Security over or affecting any asset of any company which becomes a
member of the Group after the date of this Agreement, where the Security or Quasi-Security is
created prior to the date on which that company becomes a member of the Group if:




14









 












	 	(i)	 	the Security or Quasi-Security was not created in contemplation of the
acquisition of that company;
	 
	 	(ii)	 	the principal amount secured has not increased in contemplation of or since
the acquisition of that company; and
	 
	 	(iii)	 	the Security or Quasi-Security is removed or discharged within 3 months of
that company being a member of the Group;






	 	(g)	 	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 a member of the Group in the ordinary course of trading and on the supplier’s
standard or usual terms and not arising as a result of any default or omission by any member
of the Group.






	 	 	Permitted Share Issue means an issue of shares by a member of the Group (other than the Parent)
which is a Subsidiary to its immediate Holding Company to the extent permitted by Clause 23.25
(Intra-Group Transactions) and where (if the existing shares of the Subsidiary are the subject of
the Transaction Security) the newly-issued shares also become subject to the Transaction Security
on the same terms provided that no such issue of shares will be permitted at any time after the
occurrence of a Default which is continuing.
	 
	 	 	Permitted Transaction means:






	 	(a)	 	any disposal required, Financial Indebtedness incurred, guarantee, indemnity or Security or
Quasi-Security given, or other transaction arising, under the Finance Documents;
	 
	 	(b)	 	transactions (other than (i) any sale, lease, licence, transfer or other disposal; and (ii)
the granting or creation of Security, the incurring or permitting to subsist of Financial
Indebtedness or the disposal of the shares of any member of the Group), conducted in the
ordinary course of trading on arm’s length terms;
	 
	 	(c)	 	any Permitted Acquisition; or
	 
	 	(d)	 	any Permitted Transfer,






	 	 	provided that no such disposal, transaction or other action detailed in paragraphs (b) or (c)
above that is not already existing will constitute a Permitted Transaction at any time after the
occurrence of a Default which is continuing.
	 
	 	 	Permitted Transfer means any of the proposed business or portfolio transfers listed in Schedule 14
(Permitted Transfers) provided that no Obligor or Material Company shall retain any exposure
following the completion of such transfer.
	 
	 	 	Pillar 1 Capital Requirement means, in respect of an insurer, the capital resources requirement of
that insurer as calculated under GENPRU 2.1, and, following the implementation of Solvency II,
shall mean the SCR (as defined in Solvency II) of that insurer.
	 
	 	 	Qualifying Lender has the meaning given to that term in Clause 14 (Tax Gross Up and Indemnities).
	 
	 	 	Quarter Date has the meaning given to that term in Clause 22.1 (Financial definitions).




15









 








	 	 	Quarterly Financial Statement has the meaning given to
that term in Clause 21 (Information Undertakings).
	 
	 	 	Quasi-Security has the meaning given to that term in Clause 23.11 (Negative pledge).
	 
	 	 	Quotation Day means, in relation to any period for which an interest rate is to be determined, two
Business Days before the first day of that period, unless market practice differs in the London
interbank market for a currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the London interbank market (and if
quotations would normally be given by leading banks in the London interbank market on more than
one day, the Quotation Day will be the last of those days).
	 
	 	 	Rating Agency means Standard & Poor’s Rating Services or other equivalent internationally
recognised statistical rating organisation.
	 
	 	 	Receiver means a receiver or receiver and manager or administrative receiver of the whole or any
part of the Charged Property.
	 
	 	 	Reference Banks means National Australia Bank Limited, Barclays Bank PLC and such other banks as
may be appointed by the Agent in consultation with the Parent.
	 
	 	 	Regulated Insurance Entity means a company or any legal entity which:






	 	(a)	 	operates in the insurance industry; and
	 
	 	(b)	 	is regulated by the relevant supervisory or regulatory body in the insurance market(s) in
which it operates.






	 	 	Regulatory Cover has the meaning given to it in Clause 22.1 (Financial definitions).
	 
	 	 	Related Fund in relation to a fund (first fund), means a fund which is managed or advised by the
same investment manager or adviser as the first fund or, if it is managed by a different
investment manager or adviser, a fund whose investment manager or adviser is an Affiliate of the
investment manager or adviser of the first fund.
	 
	 	 	Relevant Interbank Market means the London interbank market. 
	 
	 	 	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)	 	the jurisdiction whose laws govern the perfection of any of the Transaction Security
Documents entered into by it.






	 	 	Relevant Period has the meaning given to that term in Clause 22.1 (Financial definitions).
	 
	 	 	Repeating Representations means each of the representations set out in Clauses 20.2 (Status) to
Clause 20.7 (Governing law and enforcement), Clause 20.11 (No default), paragraph 20.12.5 of
Clause 20.12 (No misleading information), Clause




16









 












		 	20.13 (Original Financial Statements), Clause 20.18 (Ranking) to Clause 20.20 (Legal and
beneficial ownership), Clause 20.22 (Shares) and Clause 20.27 (Centre of main interests and
establishments).
	 
	 	 	Rollover Loan means one or more Loans:






	 	(a)	 	made or to be made on the same day that one or more maturing Loans is due to be repaid;
	 
	 	(b)	 	the aggregate amount of which is equal to or less than the amount of the maturing Loan(s);
and
	 
	 	(c)	 	made or to be made to the same Borrower for the purpose of refinancing the maturing Loan(s).






	 	 	Screen Rate means the British Bankers Association Interest Settlement Rate for the relevant
currency and period displayed on the appropriate page of the Reuters screen. If the agreed page is
replaced or service ceases to be available, the Agent may specify another page or service
displaying the appropriate rate after consultation with the Company and the Lenders.
	 
	 	 	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.
	 
	 	 	Security Agent means National Australia Bank Limited in its capacity as security agent and trustee
for the other Finance Parties under this Agreement and the Transaction Security Documents and any
Additional Security Agent or Delegate appointed by it in accordance with the terms of this
Agreement.
	 
	 	 	Specified Time means a time determined in accordance with Schedule 10 (Timetables).
	 
	 	 	Sterling and £ means the lawful currency of the UK.
	 
	 	 	Solvency II means the directive of The European Parliament and of the Council of the European Union
made in 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency
II), or any implementing measures or guidance made or published thereunder.
	 
	 	 	Subsidiary means an entity of which a person:






	 	(a)	 	has direct or indirect Control; or
	 
	 	(b)	 	owns directly or indirectly more than fifty per cent. (50%) of the share capital or similar
right of ownership; or
	 
	 	(c)	 	is entitled to receive more than fifty per cent. (50%) of the dividends or distributions,






	 	 	and any entity (whether or not so controlled) treated as a subsidiary in the latest financial
statements of that person from time to time and disregarding, for the purpose of this definition,
the fact that any shares in that entity may be held by way of security, that the beneficiary of
the security (or its nominee) may be registered as a member of the relevant undertaking and/or
that such beneficiary of the






17











 






	 	 	security (or its nominee) may be entitled to exercise voting powers and rights with respect to
those charged shares.
	 
	 	 	SUP means the Supervision Manual forming part of the FSA Rules.
	 
	 	 	Target means any company or entity being acquired by a member of the Group in a Permitted
Acquisition or other acquisition the consideration for which is not being funded through the
proceeds of the Facility.
	 
	 	 	Target Group means a Target and its Subsidiaries.
	 
	 	 	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).
	 
	 	 	Termination Date means the date falling three years from the date of this Agreement.
	 
	 	 	Total Commitments means the aggregate of the Commitments, being US$250,000,000 at the date of this
Agreement.
	 
	 	 	Transaction Security means the Security created or expressed to be created in favour of the
Security Agent pursuant to the Transaction Security Documents.
	 
	 	 	Transaction Security Documents means each of the
documents listed under paragraph 2.2 (Transaction Security Documents) of Part 1 of Schedule 2 (Conditions Precedent) or paragraph 11 of Part 2 of
Schedule 2 (Conditions Precedent), and any original documents of title to be provided under the
Transaction Security Documents and required to be delivered to the Agent under Schedule 2
(Conditions Precedent) together with any other document entered into by any Obligor creating or
expressed to create any Security over all or any part of its assets in respect of the obligations
of any of the Obligors under any of the Finance Documents.
	 
	 	 	Transfer Certificate means a certificate substantially
in the form set out in Schedule 5 (Form of Transfer Certificate) or any other form agreed between the Agent and the Parent.
	 
	 	 	Transfer Date means, in relation to an assignment or 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 Agent executes the relevant Assignment Agreement or Transfer
Certificate.






	 	 	Treasury Transactions means any derivative transaction entered into in connection with protection
against or benefit from fluctuation in any rate or price.
	 
	 	 	UK means the United Kingdom of Great Britain and Northern Ireland.
	 
	 	 	Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance Documents.
	 
	 	 	US Dollars or US$ means the lawful currency of the United States of America.
	 
	 	 	Utilisation Date means the date on which a Loan is made.
	 
	 	 	Utilisation Request means a notice substantially in the relevant form set out in Schedule 3
(Requests).




18









 






	 	 	VAT means value added tax as provided for in the Value Added Tax Act 1994 and any other
tax of a similar nature.
	 
	1.2	 	Construction
	 
	1.2.1	 	Unless a contrary indication appears, a reference in this Agreement to:






	 	(a)	 	the Agent, any Arranger, any Finance Party, any Lender, any Obligor, any
Party, any Secured Party, the Security Agent or any other person shall be construed
so as to include its successors in title, permitted assigns and permitted
transferees and, in the case of the Security Agent, any person for the time being
appointed as Security Agent or Security Agents in accordance with this Agreement;
	 
	 	(b)	 	a document in agreed form is a document which is previously agreed in
writing by or on behalf of the Parent and the Agent or, if not so agreed, is in the
form specified by the Agent;
	 
	 	(c)	 	Barclays Corporate means Barclays Corporate, the corporate banking
division of Barclays Bank PLC;
	 
	 	(d)	 	assets includes present and future properties, revenues and rights of
every description;
	 
	 	(e)	 	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 (in any case, however fundamentally);
	 
	 	(f)	 	guarantee means 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)	 	Guarantor, Original Guarantor, Additional Guarantor and this guarantee
shall not be construed restrictively and shall include the payment undertakings and
indemnities contained in Clause 18 (Guarantee and Indemnity);
	 
	 	(h)	 	wholly owned subsidiary means a company or corporation that has no
members except for:






	 	(i)	 	another company or corporation and that other
company’s or corporation’s wholly-owned subsidiaries; or
	 
	 	(ii)	 	persons acting on behalf of that other company
or corporation and that other company’s or corporation’s wholly-owned
subsidiaries;






	 	(i)	 	including and in particular shall not be construed restrictively but
shall mean including without prejudice to the generality of the foregoing and in
particular, but without limitation;
	 
	 	(j)	 	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;




19









 






	 	(k)	 	a person includes any individual, firm, company, corporation, government,
state or agency of a state or any association, joint venture, trust or partnership
(whether or not having separate legal personality) of two or more of the
foregoing;
	 
	 	(l)	 	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 regulatory,
self-regulatory or other authority or organisation;
	 
	 	(m)	 	a provision of law is a reference to that provision as amended or
re-enacted and any subordinate legislation made under it; and
	 
	 	(n)	 	a time of day is a reference to London time.






	1.3	 	Section, Clause and Schedule headings are for ease of reference only.
	 
	1.4	 	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.
	 
	1.5	 	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.
	 
	1.6	 	Any consent, waiver or approval required from a Finance Party under a Finance Document must
be in writing and will be of no effect if not in writing.
	 
	1.7	 	Reference to a monetary sum specified in Sterling in Clause 20 (Representations), Clause 21
(Information Undertakings), Clause 22 (Financial Covenants), Clause 23 (General Undertakings)
and/or Clause 24 (Events of Default) shall be deemed to include reference to the Base
Currency Equivalent of such sum.
	 
	1.8	 	Third Party Rights
	 
	1.8.1	 	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 (Third Parties Act) to
enforce or enjoy the benefit of any term of this Agreement.
	 
	1.8.2	 	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.
	 
	2	 	The Facilities
	 
	2.1	 	The Facilities
	 
	 	 	Subject to the terms of this Agreement the Lenders make available to the Borrowers a
revolving credit facility in an aggregate amount equal to the Total Commitments;
	 
	2.2	 	Finance Parties’ rights and obligations
	 
	2.2.1	 	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.
	 
	2.2.2	 	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




20









 






	 	 	Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
	 
	2.2.3	 	A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the
Finance Documents.
	 
	2.3	 	Obligors’ Agent
	 
	2.3.1	 	Each Obligor (other than the Parent) by its execution of this Agreement or an Accession
Letter irrevocably appoints the Parent to act on its behalf as its agent in relation to the
Finance Documents and irrevocably authorises:






	 	(a)	 	the Parent on its behalf to supply all information concerning itself
contemplated by the Finance Documents 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 Letter, 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 Parent,






	 	 	and in each case the Obligor shall be bound as though the Obligor itself had given the
notices and instructions or executed or made the agreements or effected the amendments,
supplements or variations, or received the relevant notice, demand or other
communication.
	 
	2.3.2	 	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	 	Purpose
	 
	 	 	Each Borrower shall apply all amounts borrowed by it under the Facility towards:
	 
	3.1.1	 	prepayment of the Existing Facilities,
	 
	3.1.2	 	general corporate purposes of the Group; and
	 
	3.1.3	 	funding any acquisitions in the non-life run-off sector falling within the definition of
“Permitted Acquisition”.
	 
	3.2	 	Monitoring
	 
	 	 	No Finance Party is bound to monitor or verify the application of any amount borrowed
pursuant to this Agreement.




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	4	 	Conditions of Loans
	 
	4.1	 	Initial conditions precedent
	 
	 	 	The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) in
relation to any Loan if, on or before the Utilisation Date for that Loan, the Agent has
received 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 Obligors’ Agent and the Lenders in writing promptly upon being so satisfied.
	 
	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:






	 	(a)	 	in the case of a Rollover Loan, no Event of Default is continuing or
would result from the proposed Loan and, in the case of any other Loan, no Default
is continuing or would result from the proposed Loan;
	 
	 	(b)	 	the Repeating Representations to be made by each Obligor are true; and
	 
	 	(c)	 	the proposed Loan would not cause the Net Worth Cover to be less than or
equal to 2.0:1.






	4.3	 	Maximum number of Loans
	 
	 	 	A Borrower (or the Parent) may not deliver a Utilisation Request if as a result of the
proposed Loan more than 15 Loans would be outstanding.
	 
	5	 	Loans
	 
	5.1	 	Delivery of a Utilisation Request
	 
	 	 	A Borrower (or the Parent 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)	 	it identifies the Borrower of the proposed Loan;
	 
	 	(c)	 	the currency and amount of the Loan comply with Clause 5.3 (Currency and
amount); and
	 
	 	(d)	 	the proposed Interest Period complies with Clause 11 (Interest Periods).






	5.2.2	 	Only one Loan may be requested in each Utilisation Request.
	 
	5.3	 	Currency and amount
	 
	5.3.1	 	The currency specified in a Utilisation Request must be the Base Currency.
	 
	5.3.2	 	The amount of the proposed Loan must be a minimum of US$5,000,000 or, if less, the Available
Facility.




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	5.4	 	Lenders’ participation
	 
	5.4.1	 	If the conditions set out in this Agreement have been met, each Lender shall make its
participation in each Loan available by the Utilisation Date through its Facility Office.
	 
	5.4.2	 	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.
	 
	5.5	 	Cancellation of Commitment
	 
	 	 	The Commitments which, at that time, are unutilised shall be immediately cancelled at
the end of the Availability Period.
	 
	6	 	Repayment
	 
	6.1.1	 	Each Borrower which has drawn a Loan shall repay that Loan on the last day of its Interest Period.
	 
	6.1.2	 	Any Loan remaining outstanding on the Termination Date shall be repaid in full on such date.
	 
	7	 	Illegality, Voluntary Prepayment and Cancellation
	 
	7.1	 	Illegality
	 
	 	 	If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its
obligations as contemplated by this Agreement or to fund, issue or maintain its
participation in any Loan:






	 	(a)	 	that Lender shall promptly notify the Agent upon becoming aware of that
event;
	 
	 	(b)	 	upon the Agent notifying the Obligors’ Agent, the Commitment of that
Lender will be immediately cancelled; and
	 
	 	(c)	 	each Borrower shall repay that Lender’s participation in the Loans made
to that Borrower on the last day of the Interest Period for each Loan occurring
after the Agent has notified the Obligors’ Agent 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).






	7.2	 	Voluntary cancellation
	 
	 	 	Subject to Clause 7.3 (Voluntary prepayment of Loans) the Parent 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 of
US$500,000) of the Available Facility. Any cancellation under this Clause 7.2 shall
reduce the Commitments of the Lenders rateably.
	 
	7.3	 	Voluntary prepayment of Loans
	 
	 	 	A Borrower may, if it or the Parent gives the Agent not less than 7 Business Days’ (or
such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or
any part of a Loan as specified in the relevant notice (but, if in part, being an amount
that reduces the amount of the Loan by a minimum amount of US$5,000,000 or its
equivalent).




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	7.4	 	Right of cancellation and repayment in relation to a single Lender
	 
	7.4.1	 	If:






	 	(a)	 	any sum payable to any Lender by an Obligor is required to be increased
under Clause 14.2 (Tax gross-up); or
	 
	 	(b)	 	any Lender claims indemnification from the Obligors’ Agent or an Obligor
under Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased costs),






	 	 	the Obligors’ Agent 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 Loans.
	 
	7.4.2	 	On receipt of a notice referred to in Clause 7.4.1 above in relation to a Lender, the
Commitment of that Lender shall immediately be reduced to zero.
	 
	7.4.3	 	On the last day of each Interest Period which ends after the Obligors’ Agent has given
notice under Clause 7.4.1 above in relation to a Lender (or, if earlier, the date specified by
the Obligors’ Agent in that notice), each Borrower to whom a Loan is outstanding shall repay
that Lender’s participation in that Loan together with all interest and other amounts accrued
under the Finance Documents.
	 
	8	 	Mandatory Prepayment
	 
	8.1	 	Exit
	 
	 	 	Upon the occurrence of a Change of Control the Facility will be cancelled and all
outstanding Loans, together with accrued interest, and all other amounts accrued under
the Finance Documents, shall become immediately due and payable.
	 
	8.2	 	Disposal and Insurance Proceeds
	 
	8.2.1	 	For the purposes of this Clause 8.2, Clauses 8.3 (Application of mandatory prepayments) and
Clause 8.4 (Mandatory Prepayment Accounts and Holding Accounts):
	 
	 	 	Disposal: means a sale, lease, licence, transfer, loan or other disposal by a person of
any asset, undertaking or business (whether by a voluntary or involuntary single
transaction or series of transactions).
	 
	 	 	Disposal Proceeds: means the consideration receivable by any member of the Group
(including any amount receivable in repayment of intercompany debt) for any Disposal made
by any member of the Group except for Excluded Disposal Proceeds and after deducting:






	 	(a)	 	any reasonable expenses which are incurred by any member of the Group
with respect to that Disposal to persons who are not members of the Group; and
	 
	 	(b)	 	any Tax incurred and required to be paid by the seller in connection with
that Disposal (as reasonably determined by the seller, on the basis of existing
rates and taking account of any available credit, deduction or allowance).






	 	 	Excluded Disposal Proceeds: means Disposal Proceeds which have been derived from a
Disposal permitted by Clause 23.25 (Intra-Group transactions) or of a type described in
paragraphs (a) or (b) or (c) of the definition of Permitted Disposal.




24









 






	 	 	Excluded Insurance Proceeds: means any proceeds of an insurance claim which the Parent
notifies the Agent are, or are to be, applied:






	 	(a)	 	to meet a third party claim; or
	 
	 	(b)	 	in amelioration of the loss in respect of which the relevant insurance
claim was made,






	 	 	in each case as soon as possible (but in any event within 180 days, or such longer
period as the Majority Lenders may agree) after receipt.
	 
	 	 	Insurance Proceeds: means the proceeds of any insurance claim received by any member of
the Group except for Excluded Insurance Proceeds and after deducting any reasonable
expenses in relation to that claim which are incurred by any member of the Group to
persons who are not members of the Group.
	 
	8.2.2	 	The Parent shall ensure that the Borrowers prepay Loans in the following amounts at the
times and in the order of application contemplated by Clause 8.3 (Application of mandatory
prepayments):






	 	(a)	 	the amount of Disposal Proceeds; and
	 
	 	(b)	 	the amount of Insurance Proceeds.






	8.3	 	Application of mandatory prepayments
	 
	8.3.1	 	A prepayment made under Clause 8.2 (Disposal and Insurance Proceeds) shall be applied in
prepayment of the Loans.
	 
	8.3.2	 	Subject to Clause 8.3.3 below, the Obligors’ Agent may elect that any prepayment under
Clause 8.2 (Disposal and Insurance Proceeds) be applied in prepayment of a Loan on the last
day of the Interest Period relating to that Loan. If the Obligors’ Agent makes that election
then a proportion of the Loan equal to the amount of the relevant prepayment will be due and
payable on the last day of its Interest Period.
	 
	8.3.3	 	If the Obligors’ Agent has made an election under Clause 8.3.2 above but a Default has
occurred and is continuing, that election shall no longer apply and a proportion of the Loan
in respect of which the election was made equal to the amount of the relevant prepayment
shall be immediately due and payable (unless the Majority Lenders otherwise agree in
writing).
	 
	8.4	 	Mandatory Prepayment Accounts and Holding Accounts
	 
	8.4.1	 	The Obligors’ Agent shall ensure that:






	 	(a)	 	Disposal Proceeds and Insurance Proceeds in respect of which the
Obligors’ Agent has made an election under Clause 8.3 (Application of mandatory
prepayments) are paid into a Mandatory Prepayment Account as soon as reasonably
practicable after receipt by a member of the Group; and
	 
	 	(b)	 	Excluded Disposal Proceeds to be applied in replacement of assets, and
Excluded Insurance Proceeds are paid into a Holding Account as soon as reasonably
practicable after receipt by a member of the Group.






	8.4.2	 	The Parent and each Borrower irrevocably authorise the Agent to apply:






	 	(a)	 	amounts credited to the Mandatory Prepayment Account; and




25









 






	 	(b)	 	amounts credited to the Holding Account which have not been duly applied as
contemplated within 180 days of receipt of the relevant proceeds (or such longer
time period as the Majority Lenders may agree),






	 	 	to pay amounts due and payable under Clause 8.3 (Application of mandatory prepayments)
and otherwise under the Finance Documents. The Parent and each Borrower further
irrevocably authorise the Agent to so apply amounts credited to the Holding Account in
respect of Excluded Disposal Proceeds to be applied in replacement of assets and
Excluded Insurance Proceeds whether or not 180 days have elapsed since receipt of those
proceeds if a Default has occurred and is continuing. The Parent and each Borrower also
irrevocably authorise the Agent to transfer any amounts credited to the Holding Account
referred to in this Clause 8.4.2 to the Mandatory Prepayment Account pending payment of
amounts due and payable under the Finance Documents (but if all such amounts have been
paid any such amounts remaining credited to the Mandatory Prepayment Account may (unless
a Default has occurred) be transferred back to the Holding Account).
	 
	8.4.3	 	A Lender, Security Agent or Agent with which a Mandatory Prepayment Account or Holding
Account is held acknowledges and agrees that (1) interest shall accrue at normal commercial
rates offered by such Lender, Security Agent or Agent in Europe on amounts credited to those
accounts and that the account holder shall be entitled to receive such interest (which shall
be paid in accordance with the mandate relating to such account) unless a Default is
continuing, and (2) each such account is subject to the Transaction Security.
	 
	8.5	 	Excluded proceeds
	 
	 	 	Where Excluded Disposal Proceeds and Excluded Insurance Proceeds include amounts which
are intended to be used for a specific purpose within a specified period (as set out in
the relevant definition of Excluded Disposal Proceeds or Excluded Insurance Proceeds),
the Obligors’ Agent shall ensure that those amounts are used for that purpose and shall
promptly deliver a certificate to the Agent at the time of such application and at the
end of such period confirming the amount (if any) which has been so applied within the
requisite time periods provided for in the relevant definition.
	 
	9	 	Restrictions
	 
	9.1	 	Notices of Cancellation or Prepayment
	 
	 	 	Any notice of cancellation, prepayment, authorisation or other election given by any
Party under Clause 7 (Illegality, Voluntary Prepayment and Cancellation), Clause 8.3
(Application of mandatory prepayments) or Clause 8.4 (Mandatory Prepayment Accounts and
Holding Accounts) (subject to the terms of those Clauses) shall be irrevocable and,
unless a contrary indication appears in this Agreement, any such notice 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.
	 
	9.2	 	Interest and other amounts
	 
	 	 	Any prepayment under this Agreement shall be made together with accrued interest on the
amount prepaid and, subject to any prepayment fee payable under Clause 9.3 (Prepayment
Fee) and any Break Costs, without premium or penalty.
	 
	9.3	 	Prepayment Fee
	 
	 	 	In the event that all of the Loans are prepaid pursuant to Clause 7.3 (Voluntary
prepayment of Loans) as a result of a refinancing with a third party funder on or




26









 






	 	 	before the first anniversary of the date of this Agreement, the Parent shall pay to the
Agent for the account of the Lenders a fee computed at the rate of one per cent. (1%) of
the amount prepaid. Any such fee will be paid on the same date as the prepayment which
causes the fee to be payable.
	 
	9.4	 	Reborrowing of a Facility
	 
	 	 	Unless a contrary indication appears in this Agreement, any part of the Facility which
is prepaid (including any prepayment made pursuant to Clause 8.2.2) or repaid may be
reborrowed in accordance with the terms of this Agreement.
	 
	9.5	 	Prepayment in accordance with Agreement
	 
	 	 	No Borrower shall 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.
	 
	9.6	 	No reinstatement of Commitments
	 
	 	 	No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
	 
	9.7	 	Agent’s receipt of Notices
	 
	 	 	If the Agent receives a notice under Clause 7 (Illegality, Voluntary Prepayment and
Cancellation) or an election under Clause 8.3 (Application of mandatory prepayments), it
shall promptly forward a copy of that notice or election to either the Obligors’ Agent
or the affected Lender, as appropriate.
	 
	10	 	Interest
	 
	10.1	 	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:






	 	(a)	 	Margin;
	 
	 	(b)	 	LIBOR; and
	 
	 	(c)	 	Mandatory Cost, if any,






	 	 	(together the Interest).
	 
	10.2	 	Payment of Interest
	 
	 	 	The Borrower to which a Loan has been made shall pay accrued interest on each Loan on
the last day of each Interest Period (and, if the Interest Period is longer than six
Months, on the dates falling at six Monthly intervals after the first day of the
Interest Period).
	 
	10.3	 	Default interest
	 
	10.3.1	 	If an Obligor fails to pay any amount payable by it under a Finance Document on its due
date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual
payment (both before and after judgment) at a rate which, subject to Clause 10.3.2 below, is 1
per cent higher than the rate which would have been payable if the Unpaid Sum had, during the
period of non-payment, constituted a Loan in the currency of the Unpaid Sum for successive
Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest
accruing under




27









 






	 	 	this Clause 10.3 shall be immediately payable by the Obligor on demand by the Agent.
	 
	10.3.2	 	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 1 per cent higher than the rate which would have applied if
the overdue amount had not become due.






	10.3.3	 	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.
	 
	10.4	 	Notification of rates of interest
	 
	 	 	The Agent shall promptly notify the Lenders and the relevant Borrower (or the Parent) of
the determination of a rate of interest under this Agreement.
	 
	11	 	Interest Periods
	 
	11.1	 	Selection of Interest Periods and Terms
	 
	11.1.1	 	A Borrower (or the Parent on behalf of a Borrower) may select an Interest Period for a Loan
in the Utilisation Request for that Loan.
	 
	11.1.2	 	Subject to this Clause 11, a Borrower (or the Parent) may select an Interest Period of two,
three or six Months or any other period agreed between the Parent and the Agent (acting on
the instructions of all the Lenders).
	 
	11.1.3	 	An Interest Period for a Loan shall not extend beyond the Termination Date.
	 
	11.1.4	 	Each Interest Period for a Loan shall start on the Utilisation Date.
	 
	11.1.5	 	A Loan has one Interest Period only.
	 
	11.2	 	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).
	 
	12	 	Changes To The Calculation Of Interest
	 
	12.1	 	Absence of quotations
	 
	 	 	Subject to Clause 12.2 (Market disruption), if LIBOR is to be determined by reference to
the Reference Banks but a Reference Bank does not supply a quotation by the Specified
Time on the Quotation Day, the applicable LIBOR shall be determined on the basis of the
quotations of the remaining Reference Banks.
	 
	12.2	 	Market disruption
	 
	12.2.1	 	If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the
rate of interest on each Lender’s share of that Loan for the Interest Period shall be the
percentage rate per annum which is the sum of:






	 	(a)	 	the applicable Margin;




28









 






	 	(b)	 	the rate notified to the Agent by that Lender as soon as practicable and in
any event before interest is due to be paid in respect of that Interest Period, to
be that which expresses as a percentage rate per annum the cost to that Lender of
funding its participation in that Loan from whatever source it may reasonably
select; and
	 
	 	(c)	 	the Mandatory Cost, if any, applicable to that Lender’s participation in
the Loan.






	12.2.2	 	In this Agreement Market Disruption Event means:






	 	(a)	 	at or about noon on the Quotation Day for the relevant Interest Period
the Screen Rate is not available and none or only one of the Reference Banks
supplies a rate to the Agent to determine LIBOR for the relevant currency and
Interest Period; or
	 
	 	(b)	 	before close of business in London on the Quotation Day for the relevant
Interest Period, the Agent receives notifications from a Lender or Lenders (whose
participations in a Loan exceed 30 per cent of that Loan) that the cost to it of
obtaining matching deposits in the London Interbank market would be in excess of
LIBOR.






	12.3	 	Alternative basis of interest or funding
	 
	12.3.1	 	If a Market Disruption Event occurs and the Agent or the Parent so requires, the Agent and
the Obligors’ Agent 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.
	 
	12.3.2	 	Any alternative basis agreed pursuant to Clause 12.3.1 above shall, with the prior consent
of all the Lenders and the Obligors’ Agent, be binding on all Parties.
	 
	12.4	 	Break Costs
	 
	12.4.1	 	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.
	 
	12.4.2	 	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.
	 
	13	 	Fees
	 
	13.1	 	Commitment fee
	 
	13.1.1	 	The Parent shall pay to the Agent (for the account of each Lender) a fee in the Base
Currency computed at the rate of one point one per cent. (1.10%) per annum on the daily
undrawn and uncancelled amount of the Facility during the Availability Period.
	 
	13.1.2	 	The accrued commitment fee is payable on the last day of each successive period of three
Months which ends during the relevant Availability Period, on the last day of the relevant
Availability Period and on the cancelled amount of the relevant Lender’s Commitment at the
time the cancellation is effective.




29









 






	13.2	 	Arrangement fee
	 
	 	 	The Parent shall pay to the Arrangers arrangement fees in the amount, manner and at the
times agreed in a Fee Letter.
	 
	13.3	 	Agency fee
	 
	 	 	The Parent shall pay to the Agent (for its own account) an agency fee in the amount,
manner and at the times agreed in a Fee Letter.
	 
	14	 	Tax Gross Up And Indemnities
	 
	14.1	 	Definitions
	 
	14.1.1	 	In this Agreement:






	 	(a)	 	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.
	 
	 	(b)	 	Qualifying Lender: means:






	 	(i)	 	a Lender (other than a Lender within
sub-paragraph (ii) below) which is beneficially entitled to interest
payable to that Lender in respect of an advance under a Finance
Document and is:
	 
	 	(A)	 	a Lender:






	 	(1)	 	which is a bank (as defined for the
purpose of section 879 of the ITA) making an advance under a
Finance Document; or
	 
	 	(2)	 	in respect of an advance made under
a Finance Document by a person that was a bank (as defined for
the purpose of section 879 of the ITA) at the time that that
advance was made,






	 	 	 	and which is within the charge to United Kingdom corporation tax as
respects any payments of interest made in respect of that advance;
	 
	 	(B)	 	a Lender which is:






	 	(1)	 	a company resident in the United
Kingdom for United Kingdom tax purposes;
	 
	 	(2)	 	a partnership each member of which is:






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





30









 






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






	 	(C)	 	a Treaty Lender; or
	 
	 	(ii)	 	a building society (as defined for the purposes of section 880
of the ITA) making an advance under a Finance Document).






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






	 	(i)	 	a company resident in the United Kingdom for United Kingdom tax
purposes;
	 
	 	(ii)	 	a partnership each member of which is:
	 
	 	(A)	 	a company so resident in the United Kingdom; or
	 
	 	(B)	 	a company not so resident in the United Kingdom which carries on
a trade in the United Kingdom through a permanent establishment and which
brings into account in computing its chargeable profits (within the meaning of
section 19 of the CTA) the whole of any share of interest payable in respect of
that advance that falls to it by reason of Part 17 of the CTA; or
	 
	 	(iii)	 	a company not so resident in the United Kingdom which carries on
a trade in the United Kingdom through a permanent establishment and which brings
into account interest payable in respect of that advance in computing the
chargeable profits (within the meaning of section 19 of the CTA) of that
company.






	 	(d)	 	Tax Credit: means a credit against, relief or remission for, or repayment of, any Tax.
	 
	 	(e)	 	Tax Deduction: means a deduction or withholding for or on account of Tax from a payment
under a Finance Document.
	 
	 	(f)	 	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).
	 
	 	(g)	 	Treaty Lender means a Lender which:






	 	(i)	 	is treated as a resident of a Treaty State for the purposes of
the Treaty; and
	 
	 	(ii)	 	does not carry on a business in the United Kingdom through a
permanent establishment with which that Lender’s participation in the Loan is
effectively connected.






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




31









 






	 	(i)	 	UK Non-Bank Lender means:






	 	(i)	 	where a Lender becomes a Party on the day on
which this Agreement is entered into, a Lender listed in Part 4 of
Schedule 1 (The Original Parties); and
	 
	 	(ii)	 	where a Lender becomes a Party after the day on
which this Agreement is entered into, a Lender which gives a Tax
Confirmation in the Assignment Agreement or Transfer Certificate which
it executes on becoming a Party.






	14.1.2	 	Unless a contrary indication appears, in this Clause 14 a reference to determines or
determined means a determination made in the absolute discretion of the person making the
determination.
	 
	14.2	 	Tax gross-up
	 
	14.2.1	 	Each Obligor shall make all payments to be made by it under the Finance Documents without
any Tax Deduction, unless a Tax Deduction is required by law.
	 
	14.2.2	 	The Parent 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 that it must make)
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 Parent and that Obligor.
	 
	14.2.3	 	If a Tax Deduction is required by law to be made by an Obligor from any payment due from it
under the Finance Documents, 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.
	 
	14.2.4	 	A payment shall not be increased under Clause 14.2.3 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
	 
	 	(b)	 	the relevant Lender is a Qualifying Lender solely by virtue of paragraph
(i)(B) of the definition of Qualifying Lender and:






	 	(i)	 	an officer of H.M. 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





32









 






	 	(c)	 	the relevant Lender is a Qualifying Lender solely by virtue
of paragraph (i)(B) 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.






	 	(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
Clause 14.2.7 below






	14.2.5	 	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.
	 
	14.2.6	 	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 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.
	 
	14.2.7	 	 






	 	(a)	 	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.
	 
	 	(b)	 	Nothing in paragraph (a) above shall require a Treaty Lender to:






	 	(i)	 	register under the HMRC DT Treaty Passport scheme;
	 
	 	(ii)	 	apply the HMRC DT Treaty Passport scheme to any
Utilisation if it has so registered; or
	 
	 	(iii)	 	file Treaty forms if it has:
	 
	 	(A)	 	included an indication to the effect that it
wishes the HMRC DT Treaty Passport scheme to apply to this Agreement;
or
	 
	 	(B)	 	notified the Parent of its scheme reference
number and its jurisdiction of tax residence.






	14.2.8	 	A Treaty Lender which becomes a Party on the day on which this Agreement is entered into
that holds a passport under the HMRC DT Treaty Passport scheme, and which then wishes that
scheme to apply to this Agreement, shall include an indication to that effect (for the
benefit of the Agent and without liability to any Obligor) by including its scheme reference
number and its jurisdiction of tax residence opposite its name in Part 3 of Schedule 1 (The
Original Parties).
	 
	14.2.9	 	If a Lender has not either:




33









 












	 	(a)	 	included an indication to the effect that it wishes the HMRC DT Treaty Passport
scheme to apply to this Agreement in accordance with Clause 14.2.8 above or
paragraph (a) of Clause 14.6 (HMRC DT Treaty Passport scheme confirmation); or
	 
	 	(b)	 	notified the Parent of its scheme reference number and its jurisdiction
of tax residence pursuant to paragraph (l) above,






	 	 	no Obligor shall file any form relating to the HMRC DT Treaty Passport scheme in respect
of that Lender’s Commitment or its participation in any Utilisation.
	 
	14.3	 	Tax indemnity
	 
	14.3.1	 	The Parent 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.
	 
	14.3.2	 	Clause 14.3.1 above shall not apply:






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






	 	(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 14.2 (Tax gross-up); or
	 
	 	(ii)	 	would have been compensated by an increased
payment under Clause 14.2 (Tax gross-up) but was not so compensated
solely because one of the exclusions in Clause 14.2.4 (Tax gross-up)
applied.






	14.3.3	 	A Protected Party making, or intending to make a claim under Clause 14.3.1 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 Parent.
	 
	14.3.4	 	A Protected Party shall, on receiving a payment from an Obligor under Clauses 14.3.1
to 14.3.2, notify the Agent.
	 
	14.4	 	Tax Credit
	 
	14.4.1	 	If an Obligor makes a Tax Payment and the relevant Finance Party determines that:






	 	(a)	 	a Tax Credit is attributable either to an increased payment of which
that Tax Payment forms part or to that Tax Payment; and




34









 






	 	(b)	 	that Finance Party has obtained, utilised and retained 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.






	14.5	 	Lender Status Confirmation
	 
	 	 	Each Lender which becomes a Party to this Agreement after the date of this Agreement
shall indicate, in the Transfer Certificate or Assignment Agreement 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:






	 	(a)	 	not a Qualifying Lender;
	 
	 	(b)	 	a Qualifying Lender (other than a Treaty Lender); or
	 
	 	(c)	 	a Treaty Lender.






	 	 	If a New Lender fails to indicate its status in accordance with this Clause 14.5 then
such New 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 Agent
which category applies (and the Agent, upon receipt of such notification, shall inform
the Parent). For the avoidance of doubt, a Transfer Certificate or Assignment Agreement
shall not be invalidated by any failure of a Lender to comply with this Clause 14.5.
	 
	14.6	 	HMRC DT Treaty Passport scheme confirmation
	 
	14.6.1	 	A New Lender that is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport
scheme, and which then wishes that scheme to apply to this Agreement, shall include an
indication to that effect (for the benefit of the Agent and without liability to any Obligor)
in the Transfer Certificate or Assignment Agreement which it executes by including its scheme
reference number and its jurisdiction of tax residence in that Transfer Certificate or
Assignment Agreement.
	 
	14.6.2	 	Where a New Lender includes the indication described in paragraph (a) above in the relevant
Transfer Certificate or Assignment Agreement:






	 	(a)	 	each Borrower which is a Party as a Borrower as at the relevant Transfer
Date shall file a duly completed form DTTP2 in respect of such Lender with HM
Revenue & Customs within 30 days of that Transfer Date and shall promptly provide
the Lender with a copy of that filing; and
	 
	 	(b)	 	each Additional Borrower which becomes an Additional Borrower after the
relevant Transfer Date shall file a duly completed form DTTP2 in respect of such
Lender with HM Revenue & Customs within 30 days of becoming an Additional Borrower
and shall promptly provide the Lender with a copy of that filing.






	14.7	 	Stamp taxes
	 
	 	 	The Parent shall pay and, within three Business Days of demand, indemnify each Secured
Party and the Arrangers against any cost, loss or liability such Secured Party or such
Arranger incurs in relation to all stamp duty, registration and other similar Taxes
payable in respect of any Finance Document.




35









 






	14.8	 	Value added tax
	 
	14.8.1	 	All consideration expressed to be payable under a Finance Document by any Party to a
Finance Party shall be deemed to be exclusive of any VAT. Subject to Clause 14.8.2 below, if
VAT is chargeable on any supply made by any Finance Party to any Party in connection with a
Finance Document, that Party shall pay to the Finance Party (in addition to and at the same
time as paying the consideration) an amount equal to the amount of the VAT (and such Finance
party shall promptly provide an appropriate VAT invoice to such Party).
	 
	14.8.2	 	If VAT is chargeable on any supply made by any Finance Party (Supplier) to any other
Finance Party (Recipient) in connection with a Finance Document, and any Party is required by
the terms of any Finance Document to pay an amount equal to the consideration for such supply
to the Supplier, such Party shall also pay to the Supplier (in addition to and at the same
time as paying such amount) an amount equal to the amount of such VAT.
	 
	 	 	Where a Finance Document requires any Party to reimburse a Finance Party for any costs or
expenses, that Party shall also at the same time pay and indemnify the Finance Party
against all VAT incurred by the Finance Party in respect of the costs or expenses to the
extent that the Finance Party reasonably determines that it is not entitled to credit or
repayment from the relevant tax authority in respect of the VAT.
	 
	15	 	Increased Costs
	 
	15.1	 	Increased costs
	 
	15.1.1	 	Subject to Clause 15.3 (Exceptions) the Parent shall, within three Business Days of a
demand by the 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 the date of this
Agreement.
	 
	15.1.2	 	In this Agreement Increased Costs means:






	 	(a)	 	a reduction in the rate of return from the Facility or on a Finance
Party’s (or its Affiliate’s) overall capital;
	 
	 	(b)	 	an additional or increased cost; or
	 
	 	(c)	 	a reduction of any amount due and payable under any Finance Document,






	 	 	which is incurred or suffered by a Finance Party or any of its Affiliates to the extent
that it is attributable to that Finance Party having entered into its Commitment or
funding or performing its obligations under any Finance Document.
	 
	15.2	 	Increased cost claims
	 
	15.2.1	 	A Finance Party intending to make a claim pursuant to Clause 15.2 (Increased costs) shall
notify the Agent of the event giving rise to the claim, following which the Agent shall
promptly notify the Parent.
	 
	15.2.2	 	Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a
certificate confirming the amount of its Increased Costs.




36









 






	15.3	 	Exceptions
	 
	15.3.1	 	Clause 15.1 (Increased costs) does not apply to the extent any Increased Cost is:






	 	(a)	 	attributable to a Tax Deduction required by law to be made by an Obligor;
	 
	 	(b)	 	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 Clause 14.3 (Tax indemnity) applied);
	 
	 	(c)	 	compensated for by the payment of Mandatory Costs; or
	 
	 	(d)	 	attributable to the wilful breach by the relevant Finance Party or its
Affiliates of any law or regulation.






	15.3.2	 	In this Clause 15 reference to a Tax Deduction has the same meaning given to the term in
Clause 14.1 (Definitions).
	 
	16	 	Indemnities
	 
	16.1	 	Currency indemnity
	 
	16.1.1	 	If any sum due from an Obligor under the Finance Documents (Sum), or any order, judgment or
award given or made in relation to a Sum, has to be converted from the currency (First
Currency) in which that Sum is payable into another currency (Second Currency) for the purpose
of:






	 	(a)	 	making or filing a claim or proof against that Obligor; or
	 
	 	(b)	 	obtaining or enforcing an order, judgment or award in relation to any
litigation or arbitration proceedings,
	 
	 	(c)	 	that Obligor shall as an independent obligation, within three Business
Days of demand, indemnify the Arrangers and each other 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 (1) the rate of exchange used to
convert that Sum from the First Currency into the Second Currency and (2) the rate
or rates of exchange available to that person at the time of its receipt of that
Sum.






	16.1.2	 	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.
	 
	16.2	 	Other indemnities
	 
	16.2.1	 	The Parent shall (or shall procure that an Obligor will), within three Business Days of
demand, indemnify the Arrangers and each other Secured Party against any cost, loss or
liability incurred by it as a result of:






	 	(a)	 	the occurrence or continuance of any Event of Default;
	 
	 	(b)	 	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 29 (Sharing among the Finance Parties);
	 
	 	(c)	 	funding, or making arrangements to fund, its participation in a Loan
requested by a Borrower in a Utilisation Request but not made by reason of




37









 






	 	 	 	the operation of any one or more of the provisions of this Agreement (other than by
reason of default or negligence by that Finance Party alone); or
	 
	 	(d)	 	a Loan (or part of a Loan) not being prepaid in accordance with a notice
of prepayment given by a Borrower or the Parent.






	16.2.2	 	The Parent shall promptly indemnify each Finance Party, each Affiliate of a Finance Party
and each officer or employee of a Finance Party or its Affiliate, against any cost, loss or
liability incurred by that Finance Party or its Affiliate (or officer or employee of that
Finance Party or Affiliate) in connection with or arising out of the funding of an acquisition
(including but not limited to those incurred in connection with any litigation, arbitration or
administrative proceedings or regulatory enquiry concerning that acquisition), unless such
loss or liability is caused by the gross negligence or wilful misconduct of that Finance Party
or its Affiliate (or employee or officer of that Finance Party or Affiliate). Any Affiliate or
any officer or employee of a Finance Party or its Affiliate may rely on Clauses 16.2.1(c) to
16.2.1(d) subject to Clause 1.8 (Third party rights) and the provisions of the Third Parties
Act.
	 
	16.3	 	Indemnity to the Agent
	 
	 	 	The Parent shall promptly indemnify the Agent against any cost, loss or liability
incurred by the Agent (acting reasonably) as a result of:






	 	(a)	 	investigating any event which it reasonably believes is a Default; or
	 
	 	(b)	 	acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately authorised.






	16.4	 	Indemnity to the Security Agent
	 
	16.4.1	 	Each Obligor 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:






	 	(a)	 	the taking, holding, protection or enforcement of the Transaction Security;
	 
	 	(b)	 	the exercise of any of the rights, powers, discretions and remedies
vested in the Security Agent and each Receiver and Delegate by the Finance
Documents or by law; and
	 
	 	(c)	 	any default by any Obligor in the performance of any of the obligations
expressed to be assumed by it in the Finance Documents.






	16.4.2	 	The Security Agent may, in priority to any payment to the Secured Parties, indemnify itself
out of the Charged Property in respect of, and pay and retain, all sums necessary to give
effect to the indemnity in Clause 16.4.1 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.
	 
	17	 	Mitigation By The Lenders
	 
	17.1	 	Mitigation
	 
	17.1.1	 	Each Finance Party shall, in consultation with the Parent, 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 7.1 (Illegality), Clause 14 (Tax
gross-up and indemnities) or Clause 15.1 (Increased costs) or paragraph 3 of Schedule 4
(Mandatory cost formula) including (but not




38









 






	 	 	limited to) transferring its rights and obligations under the Finance Documents to
another Affiliate or Facility Office.
	 
	17.1.2	 	Clause 17.1 above does not in any way limit the obligations of any Obligor under the
Finance Documents.
	 
	17.2	 	Limitation of liability
	 
	17.2.1	 	The Parent shall 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).
	 
	17.2.2	 	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.
	 
	18	 	Guarantee and Indemnity
	 
	18.1	 	Each Guarantor irrevocably and unconditionally jointly and severally:






	 	(a)	 	guarantees to each Finance Party punctual performance by each Borrower of
all that Borrower’s obligations under the Finance Documents;
	 
	 	(b)	 	undertakes with each Finance Party that whenever a Borrower does not pay
any amount when due under or in connection with any Finance Document, that
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 a Borrower 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 a Guarantor under this indemnity will not exceed the amount
it would have had to pay under this Clause 18 if the amount claimed had been
recoverable on the basis of a guarantee.






	18.2	 	Continuing guarantee
	 
	 	 	This guarantee is a continuing guarantee and will extend to the ultimate balance of sums
payable by any Obligor under the Finance Documents, regardless of any intermediate
payment or discharge in whole or in part.
	 
	18.3	 	Reinstatement
	 
	 	 	If any discharge, release or arrangement (whether in respect of the obligations of any
Obligor or any security for those obligations or otherwise) is made by a Finance Party
in whole or in part on the basis of any payment, security or other disposition which is
avoided or must be restored in insolvency, liquidation, administration or otherwise,
without limitation, then the liability of each Guarantor under this Clause 18 will
continue or be reinstated as if the discharge, release or arrangement had not occurred.
	 
	18.4	 	Waiver of defences
	 
	18.4.1	 	The obligations of each Guarantor under this Clause 18 will not be affected by an act,
omission, matter or thing which, but for this Clause, would reduce, release or




39









 






	 	 	prejudice any of its obligations under this Clause 18 (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 legal limitation, 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, invalidity or frustration of any
obligation of any person under any Finance Document or any other document or
security;
	 
	 	(g)	 	the failure of any member of the Group to enter into or be bound by any
Finance Document;
	 
	 	(h)	 	any action (or decision not to act) taken by a Finance Party (or any
trustee or agent on its behalf) in accordance with Clause 18.7 (Appropriations); or
	 
	 	(i)	 	any insolvency, dissolution or similar proceedings or from any law,
regulation or order.






	18.5	 	Guarantor intent
	 
	 	 	Without prejudice to the generality of Clause 18.4 (Waiver of defences), each Guarantor
expressly confirms that it intends that this guarantee shall extend from time to time to
any (however fundamental) variation, increase, extension or addition of or to any of the
Finance Documents and/or any facility or amount made available under any of the Finance
Documents for the purposes of or in connection with any of the following: acquisitions of
any nature; increasing working capital; enabling investor distributions to be made;
carrying out restructurings; refinancing existing facilities; refinancing any other
indebtedness; making facilities available to new borrowers; any other variation or
extension of the purposes for which any such facility or amount might be made available
from time to time; and any fees, costs and/or expenses associated with any of the
foregoing.
	 
	18.6	 	Immediate recourse
	 
	 	 	Each 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 that Guarantor




40









 






	 	 	under this Clause 18. This waiver applies irrespective of any law or any provision of a
Finance Document to the contrary.
	 
	18.7	 	Appropriations
	 
	18.7.1	 	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 no Guarantor shall be
entitled to the benefit of the same; and
	 
	 	(b)	 	hold in an interest-bearing suspense account any moneys received from
any Guarantor or on account of any Guarantor’s liability under this Clause 18.






	18.8	 	Deferral of Guarantors’ rights
	 
	18.8.1	 	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 Agent otherwise
directs, no Guarantor will exercise any rights which it may have by reason of performance by
it of its obligations under the Finance Documents or by reason of any amount being payable, or
liability arising, under this Clause 18:






	 	(a)	 	to be indemnified by an Obligor;
	 
	 	(b)	 	to claim any contribution from any other guarantor of any Obligor’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 any Obligor
to make any payment, or perform any obligation, in respect of which any Guarantor
has given a guarantee, undertaking or indemnity under Clause 18 (Guarantee and
Indemnity);
	 
	 	(e)	 	to exercise any right of set-off against any Obligor; and/or
	 
	 	(f)	 	to claim or prove as a creditor of any Obligor in competition with any
Finance Party.






	18.8.2	 	If a 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 Agent or as the Agent may direct for
application in accordance with Clause 31 (Payment mechanics).
	 
	18.9	 	Release of Guarantors’ right of contribution
	 
	18.9.1	 	If any Guarantor (a Retiring Guarantor) ceases to be a Guarantor in accordance with the
terms of the Finance Documents for the purpose of any sale or other




41









 






	 	 	disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to
be a Guarantor:






	 	(a)	 	that Retiring Guarantor is released by each other Guarantor from any
liability (whether past, present or future and whether actual or contingent) to
make a contribution to any other Guarantor arising by reason of the performance by
any other Guarantor of its obligations under the Finance Documents; and
	 
	 	(b)	 	each other Guarantor waives any rights it may have by reason of the
performance of its obligations under the Finance Documents to take the benefit (in
whole or in part and whether by way of subrogation or otherwise) of any rights of
the Finance Parties under any Finance Document or of any other security taken
pursuant to, or in connection with, any Finance Document where such rights or
security are granted by or in relation to the assets of the Retiring Guarantor.






	18.10	 	Additional security
	 
	 	 	This guarantee is in addition to and is not in any way prejudiced by any other guarantee
or security now or subsequently held by any Finance Party.
	 
	19	 	Costs And Expenses
	 
	19.1	 	Transaction expenses
	 
	 	 	The Parent shall promptly on demand pay the Agent, the Arrangers and the Security Agent
the amount of all costs and expenses (including legal fees and due diligence costs)
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, completion, syndication and perfection of:






	 	(a)	 	this Agreement and any other documents referred to in this Agreement and
the Transaction Security; and
	 
	 	(b)	 	any other Finance Documents executed after the date of this Agreement.






	19.2	 	Amendment costs
	 
	 	 	If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is
required pursuant to Clause 30.13 (Change of currency), the Parent shall, within three
Business Days of demand, reimburse each of the Agent and the Security Agent for the
amount of all costs and expenses (including legal fees) reasonably incurred by the Agent
and 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.
	 
	19.3	 	Security Agent’s ongoing costs
	 
	19.3.1	 	In the event of (1) a Default; (2) the Security Agent considering it necessary or expedient
or (3) the Security Agent being requested by an Obligor or the Majority Lenders to undertake
duties which the Security Agent and the Parent agree to be of an exceptional nature and/or
outside the scope of the normal duties of the Security Agent under the Finance Documents, the
Parent shall pay to the Security Agent any additional remuneration that may be agreed between
them.
	 
	19.3.2	 	If the Security Agent and the Parent fail to agree upon the nature of the duties or upon
any additional remuneration, that 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
Parent or, failing approval, nominated (on the




42









 






	 	 	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 payable by the Parent) and the determination of any investment bank shall be final
and binding upon the parties to this Agreement.
	 
	19.4	 	Enforcement and preservation costs
	 
	 	 	The Parent shall, within three Business Days of demand, pay to the Arrangers and each
other Secured Party on a full indemnity basis the amount of all costs and expenses
(including legal, valuation, accountancy and consulting fees and commission and out of
pocket expenses) and any VAT thereon incurred by it in connection with the enforcement
of or the preservation of or the release of any rights under any Finance Document or any
of the documents referred to in such documents in any jurisdiction and any proceedings
instituted by or against the Security Agent as a consequence of taking or holding the
Transaction Security or enforcing these rights.
	 
	20	 	Representations
	 
	20.1	 	General
	 
	 	 	Each Obligor makes the representations and warranties set out in this Clause 20 to each
Finance Party in accordance with Clause 20.32 (Times when representations made).
	 
	20.2	 	Status
	 
	20.2.1	 	It and each of its Subsidiaries is a limited liability company, duly incorporated and
validly existing under the law of its jurisdiction of incorporation.
	 
	20.2.2	 	It and each of its Subsidiaries has the power to own its assets and carry on its business as
it is being conducted.
	 
	20.3	 	Binding obligations
	 
	 	 	Subject to the Legal Reservations:






	 	(a)	 	the obligations expressed to be assumed by it in each Finance Document
to which it is a party are legal, valid, binding and enforceable obligations; and
	 
	 	(b)	 	(without limiting the generality of paragraph (a) above), each
Transaction Security Document to which it is a party creates the security interests
which that Transaction Security Document purports to create and those security
interests are valid and effective.






	20.4	 	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)	 	the constitutional documents of any member of the Group; or
	 
	 	(c)	 	any agreement or instrument binding upon it or any member of the Group or
any member of the Group’s assets or constitute a default or termination event
(however described) under any such agreement or instrument or would result




43









 






	 	 	 	in any liability on the part of a Finance Party to any third party or require the
creation of any security interest over any asset in favour of a third party.






	20.5	 	Power and authority
	 
	20.5.1	 	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
or will be a party and the transactions contemplated by those Finance Documents.
	 
	20.5.2	 	No limit on its powers will be exceeded as a result of the borrowing, grant of security or
giving of guarantees or indemnities contemplated by the Finance Documents to which it is a
party.
	 
	20.6	 	Validity and admissibility in evidence
	 
	20.6.1	 	All Authorisations required:






	 	(a)	 	to enable it lawfully to enter into, exercise its rights and comply with
its obligations in the Finance Documents to which it is a party; and
	 
	 	(b)	 	to make the Finance Documents to which it is a party admissible in
evidence in its Relevant Jurisdictions,






	 	 	have been obtained or effected and are in full force and effect except any Authorisation
referred to in Clause 20.9 (No filing or stamp taxes), which Authorisations will be
promptly obtained or effected as soon as practicable after the date of this Agreement.
	 
	20.6.2	 	All Authorisations necessary for the conduct of the business, trade and ordinary activities
of members of the Group have been obtained or effected and are in full force and effect and
are not likely to be revoked or materially adversely amended and no notice of an intention to
terminate any such Authorisation has been received by any member of the Group.
	 
	20.7	 	Governing law and enforcement
	 
	20.7.1	 	The law expressed to be the governing law in each Finance Document will be recognised and
enforced in the Relevant Jurisdictions of each Obligor executing that Finance Document.
	 
	20.7.2	 	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 Jurisdictions.
	 
	20.8	 	Insolvency
	 
	 	 	No:






	 	(a)	 	corporate action, legal proceeding or other procedure or step described
in Clause 24.7.1 (Insolvency proceedings); or
	 
	 	(b)	 	creditors’ process described in Clause 24.8 (Creditors’ process),






	 	 	has been taken or, to the knowledge of the Parent, threatened in relation to a member of
the Group; and none of the circumstances described in Clause 24.6 (Insolvency) applies
to any member of the Group.




44









 






	20.9	 	No filing or stamp taxes
	 
	 	 	Under the laws of its Relevant Jurisdiction it is not necessary that any Finance Document
be filed, recorded or enrolled with any court or other authority in that jurisdiction or
that any stamp, registration, notarial or similar Taxes or fees be paid on or in relation
to the Finance Documents or the transactions contemplated by the Finance Documents except
any filing, recording or enrolling or any tax or fee payable in relation to any
Transaction Security Documents which are referred to in any Legal Opinion and which will
be made or paid promptly after the date of the relevant Finance Document.
	 
	20.10	 	Deduction of Tax
	 
	 	 	It is not required to make any deduction for or on account of Tax from any payment it
may make under any Finance Document.
	 
	20.11	 	No default
	 
	20.11.1	 	No Event of Default and, on the date of this Agreement and the First Utilisation Date, no
Default is continuing or is reasonably likely to result from the making of any Loan or the
entry into, the performance of, or any transaction contemplated by, any Finance Document.
	 
	20.11.2	 	No other event or circumstance is outstanding which constitutes (or, with the expiry of a
grace period, the giving of notice, the making of any determination or any combination of any
of the foregoing would constitute) a default or termination event (however described) 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 is reasonably likely
to have a Material Adverse Effect.
	 
	20.12	 	No misleading information
	 
	20.12.1	 	Any written factual information provided to the Agent by any Obligor was true and accurate
in all material respects as at the date the information is expressed to be given.
	 
	20.12.2	 	Any financial projection or forecast provided to the Agent by any Obligor has been
prepared on the basis of recent historical information and on the basis of reasonable
assumptions and was fair (as at the date the projection or forecast was provided) and arrived
at after careful consideration.
	 
	20.12.3	 	The expressions of opinion or intention provided by or on behalf of an Obligor to the
Agent in any report or document were made after careful consideration and (as at the date of
the report or document containing the expression of opinion or intention) were fair and based
on reasonable grounds.
	 
	20.12.4	 	No event or circumstance has occurred or arisen and no information has been omitted from
any report or document provided to the Agent by any Obligor and no information has been given
or withheld that results in the information, opinions, intentions, forecasts or projections
contained in the relevant report being untrue or misleading in any material respect.
	 
	20.12.5	 	All material information provided to a Finance Party by or on behalf of the Parent or any
Obligor in connection with any acquisition permitted under this Agreement and/or the relevant
Target Group at the time such information is provided and not superseded before that date is
accurate and not misleading in any material respect and all projections provided to any
Finance Party at the time such information is




45









 






	 	 	provided have been prepared in good faith on the basis of assumptions which were
reasonable at the time at which they were prepared and supplied.
	 
	20.12.6	 	All other written information provided by any Obligor or any member of the Group
(including its advisers) to a Finance Party or the provider of any report was true, complete
and accurate in all material respects as at the date it was provided and is not misleading in
any respect.
	 
	20.12.7	 	As at the date of this Agreement, there has been no insurance claim since the date of the
most recent valuation of insurance liabilities report that would or, if adversely determined,
is reasonably likely to, have a Material Adverse Effect.
	 
	20.12.8	 	As at the date of this Agreement, there are no negative marked-to-market outstandings
under any existing Treasury Transactions entered into by or on behalf of any member of the
Group that would have a Material Adverse Effect.
	 
	20.13	 	Original Financial Statements
	 
	20.13.1	 	Its Original Financial Statements were prepared in accordance with the Accounting
Principles consistently applied unless expressly disclosed to the Agent in writing to the
contrary.
	 
	20.13.2	 	Its Original Financial Statements prior to them having been audited fairly represent its
financial condition and results of operations for the relevant period unless expressly
disclosed to the Agent in writing to the contrary prior to the date of this Agreement.
	 
	20.13.3	 	There has been no material adverse change in its assets, business or financial condition
(or the assets, business or consolidated financial condition of the Group, in the case of the
Parent) since the date of the Original Financial Statements.
	 
	20.13.4	 	Its most recent financial statements delivered pursuant to Clause 21.2 (Financial
statements):






	 	(a)	 	have been prepared in accordance with the Accounting Principles as
applied to the Original Financial Statements; and
	 
	 	(b)	 	give a true and fair view of (if audited) or fairly present (if
unaudited) its consolidated financial condition as at the end of, and consolidated
results of operations for, the period to which they relate.






	20.13.5	 	The budgets and forecasts supplied under this Agreement were arrived at after careful
consideration and have been prepared in good faith on the basis of recent historical
information and on the basis of assumptions which were reasonable as at the date they were
prepared.
	 
	20.13.6	 	Since the date of the most recent financial statements delivered pursuant to Clause 21.2
(Financial statements) there has been no material adverse change in the business, assets or
financial condition of the Group.
	 
	20.14	 	No proceedings pending or threatened
	 
	 	 	No litigation, arbitration or administrative proceedings or investigations of, or
before, any court, arbitral body or agency which, if adversely determined, are
reasonably likely to have a Material Adverse Effect, have (to the best of its knowledge
and belief (having made due and careful enquiry)) been started or threatened against it
or any of its Subsidiaries.






46











 






	20.15	 	No breach of laws
	 
	20.15.1	 	It has not (and none of its Subsidiaries has) has breached any law or regulation which
breach has or is reasonably likely to have a Material Adverse Effect.
	 
	20.15.2	 	No labour disputes are current or, to the best of its knowledge and belief (having made due
and careful enquiry), threatened against any member of the Group which have or are reasonably
likely to have a Material Adverse Effect.
	 
	20.16	 	Taxation
	 
	20.16.1	 	It is not (and none of its Subsidiaries is) materially overdue in the filing of any Tax
returns and it is not (and none of its Subsidiaries is) overdue in the payment of any amount
in respect of Tax of US$1,000,000 (or its equivalent in any other currency) or more.
	 
	20.16.2	 	No claims or investigations are being or are reasonably likely to be made or conducted
against it (or any of its Subsidiaries) with respect to Taxes such that a liability of, or
claim against, any member of the Group of US$1,000,000 (or its equivalent in any other
currency) or more is reasonably likely to arise.
	 
	20.16.3	 	It is resident for Tax purposes only in the jurisdiction of its incorporation.
	 
	20.17	 	Security and Financial Indebtedness
	 
	20.17.1	 	No Security or Quasi-Security exists over all or any of the present or future assets of any
member of the Group other than as permitted by this Agreement.
	 
	20.17.2	 	No member of the Group has any Financial Indebtedness outstanding other than as permitted
by this Agreement.
	 
	20.18	 	Ranking
	 
	 	 	The Transaction Security ranks or will rank prior to all other Security other than
Permitted Security.
	 
	20.19	 	Good title to assets
	 
	 	 	It and each of its Subsidiaries has a good, valid and marketable title to, or valid
leases or licences of, and all appropriate Authorisations to use, the assets necessary
to carry on its business as presently conducted.
	 
	20.20	 	Legal and beneficial ownership
	 
	20.20.1	 	It and each of its Subsidiaries is the sole legal and beneficial owner of the respective
assets over which it purports to grant Security to the Security Agent.
	 
	20.20.2	 	All the issued shares of the relevant Target are legally and beneficially owned by the
relevant member of the Group (following the completion of the relevant acquisition) free from
any claims, third party rights or competing interests.
	 
	20.21	 	Ownership
	 
	 	 	Each of the Obligors is a direct or indirect wholly-owned subsidiary of the Parent.
	 
	20.22	 	Shares
	 
	 	 	The shares of any member of the Group which are subject to the Transaction Security are
fully paid and not subject to any option to purchase or similar rights. The
constitutional documents of companies whose shares are subject to the




47









 












	 	 	Transaction Security do not and could not restrict or inhibit any transfer of those
shares on creation or enforcement of the Transaction Security. There are no agreements
in force which provide for the issue or allotment of, or grant any person the right to
call for the issue or allotment of, any share or loan capital of any member of the Group
(including any option or right of pre-emption or conversion). There is no Security or
other restrictions in existence that may attach to any dividends or other distributions
that may be made in respect of any shares of any member of the Group.
	 
	20.23	 	Intellectual Property
	 
	 	 	It and each of its Subsidiaries:






	 	(a)	 	is the sole legal and beneficial owner of or has licensed to it on normal
commercial terms all the Intellectual Property which is material in the context of
its business and which is required by it in order to carry on its business as it is
being conducted;
	 
	 	(b)	 	does not (nor does any of its Subsidiaries), in carrying on its
businesses, infringe any Intellectual Property of any third party in any respect
which has or is reasonably likely to have a Material Adverse Effect; and
	 
	 	(c)	 	has taken all formal or procedural actions (including payment of fees)
required to maintain any material Intellectual Property owned by it to the extent
that failure to do so has or is reasonably likely to have a Material Adverse Effect.






	20.24	 	Group Structure Chart
	 
	20.24.1	 	The Group Structure Chart is true, complete and accurate in all material respects and shows
the following information:






	 	(a)	 	each member of the Group, including current name and (if applicable)
company registration number, its jurisdiction of incorporation and/or
establishment, a list of shareholders and indicating whether a company is not a
company with limited liability; and
	 
	 	(b)	 	all minority interests in any member of the Group and any person in which
any member of the Group holds shares in its issued share capital or equivalent
ownership interest of such person.






	20.24.2	 	All necessary intra-Group loans, transfers, share exchanges and other steps resulting in
the final Group structure are set out in the Group Structure Chart and have been or will be
taken in compliance with all relevant laws and regulations and all requirements of relevant
regulatory authorities.
	 
	20.25	 	Financial Year end
	 
	 	 	The end of the Financial Year for each member of the Group is 31 December.
	 
	20.26	 	Insurance
	 
	 	 	There has been no non-disclosure, misrepresentation or breach of any term of any material
insurance policy which would entitle any insurer to repudiate, rescind or cancel it or to
treat it as avoided in whole or in part or otherwise decline any valid claim under it by
or on behalf of any member of the Group.
	 
	20.27	 	Centre of main interests and establishments




48









 












	 	 	In relation to each Obligor incorporated in a member state of the European Union, for the
purposes of The Council of the European Union Regulation No. 1346/2000 on Insolvency
Proceedings (the “Regulation”), its centre of main interest (as that term is used in
Article 3(1) of the Regulation) is situated in its jurisdiction of incorporation and it
has no “establishment” (as that term is used in Article 2(h) of the Regulations) in any
other jurisdiction.
	 
	20.28	 	Immunity
	 
	20.28.1	 	The execution by it of each Finance Document constitutes, and the exercise by it of its
rights and performance of its obligations under each Finance Document will constitute private
and commercial acts performed for private and commercial purposes.
	 
	20.28.2	 	It will not be entitled to claim immunity from suit, execution, attachment or other legal
process in any proceedings taken in its Relevant Jurisdictions in relation to any Finance
Document.
	 
	20.29	 	No adverse consequences
	 
	20.29.1	 	It is not necessary under the laws of its Relevant Jurisdictions:






	 	(a)	 	in order to enable any Finance Party to enforce its rights under any
Finance Document; or
	 
	 	(b)	 	by reason of the execution of any Finance Document or the performance by
it of its obligations under any Finance Document,






	 	 	that any Finance Party should be licensed, qualified or otherwise entitled to carry on
business in any of its Relevant Jurisdictions.
	 
	20.29.2	 	No Finance Party is or will be deemed to be resident, domiciled or carrying on business in
its Relevant Jurisdictions by reason only of the execution, performance and/or enforcement of
any Finance Document.
	 
	20.30	 	Pensions
	 
	 	 	Each member of the Group is in compliance in all material respects with all applicable
laws, regulations and contracts relating to the provision of pension schemes and any
pension scheme(s) it operates or participates in. All contributions due to be paid to
each such pension scheme have been paid.
	 
	20.31	 	Net Worth
	 
	 	 	On the date of this Agreement, the Consolidated Tangible Net Worth of the Parent is not
less than US$750,000,000.
	 
	20.32	 	Times when representations made
	 
	20.32.1	 	All the representations and warranties in this Clause 20 are made by each Original Obligor
on the date of this Agreement.
	 
	20.32.2	 	The Repeating Representations are deemed to be made by each Obligor on the date of each
Utilisation Request, on each Utilisation Date, on the first day of each Interest Period and,
if an Interest Period is longer than six Months, on the dates falling at six Monthly intervals
after the first day of that Interest Period (except that those contained in Clauses 20.13.1 to
20.13.4 (Original Financial Statements) will cease to be so made once subsequent financial
statements have been delivered under this Agreement).




49









 












	20.32.3	 	All the representations and warranties in this Clause 20:






	 	(a)	 	are deemed to be made by the Parent and each Additional Obligor on the
day on which that Additional Obligor becomes (or it is proposed that it becomes) an
Additional Obligor;
	 
	 	(b)	 	(except Clause 20.12 (No misleading information), Clause 20.24 (Group
Structure Chart), and Clause 20.29 (No adverse consequences)) are deemed to be made
by any other Additional Obligor on the day on which it becomes (or it is proposed
that it becomes) an Additional Obligor.






	20.32.4	 	Each representation or warranty deemed to be made after the date of this Agreement
shall be deemed to be made by reference to the facts and circumstances existing
at the date the representation or warranty is deemed to be made.
	 
	21	 	Information Undertakings
	 
	21.1	 	General
	 
	 	 	The undertakings in this Clause 21 remain in force from the date of this Agreement for so
long as any amount is outstanding under the Finance Documents or any Commitment is in
force.
	 
	 	 	In this Clause 21:






	 	(a)	 	Annual Financial Statements: means the financial statements for
a Financial Year delivered pursuant to Clause 21.2 (Financial statements).
	 
	 	(b)	 	Quarterly Financial Statements: means the financial statements for a
Financial Quarter delivered pursuant to Clause 21.2 (Financial statements).






	21.2	 	Financial statements
	 
	21.2.1	 	The Parent shall procure that each Obligor and/or each Material Company, as applicable,
shall deliver to the Agent in sufficient copies for all the Lenders:






	 	(a)	 	as soon as they are available, but in any event within 120 days (or 75
days in respect of the Parent) after the end of each of its Financial Years:






	 	(i)	 	the audited consolidated financial statements of
Cumberland Holdings Limited and each Obligor for that Financial Year or,
if such person is not required to produce consolidated audited financial
statements and has not done so for that Financial Year, its consolidated
management schedules for such Financial Year provided that any such
person must provide audited consolidated financial statements if the
Agent so requests;
	 
	 	(ii)	 	the audited financial statements of each Obligor
and each Material Company for that Financial Year; and
	 
	 	(iii)	 	the audited financial statements of any other
member of the Group for that Financial Year if requested by the Agent;






	 	(b)	 	as soon as they are available, but in any event within 45 days after the
end of each Financial Quarter of each of its Financial Years the consolidated and
unconsolidated financial statements of each Obligor for that Financial
Quarter, to include:




50









 












	 	(i)	 	(in the case of the Parent only) details of all Disposal
Proceeds as defined in Clause 8.2 (Disposal and Insurance Proceeds);
	 
	 	(ii)	 	(in the case of the Parent only) details of all
surpluses in any fund or funds of each member of the Group which is an
insurance company;
	 
	 	(iii)	 	(in the case of the Parent only) a summary of
cash realisations of each member of each relevant Target Group (as
appropriate) following the relevant acquisition;
	 
	 	(iv)	 	(in the case of the Parent only) details of the
proceeds of the cash realisations of each member of each relevant
Target Group following the relevant acquisition;
	 
	 	(v)	 	a discussion of major incurred claims movements
with appropriate narrative;






	 	(c)	 	as soon as they are available, but in any event within 45 days after the
end of each Financial Quarter of each of its Financial Years:






	 	(i)	 	a written breakdown of all reinsurance and
retrocession balances of the Group at the end of that Financial Quarter
including details of the counterparty from whom such balances are owed,
an ageing of such balances, and details of any movements in any
receivables and recoveries made during such period; and
	 
	 	(ii)	 	details of any bad debt or other provisions held
by a member of the Group at the end of that Financial Quarter including
details of changes made in relation to such bad debts or other
provisions together with the reasons for such provisions being made;






	 	(d)	 	as soon as it is available but in any event within 60 days after the
start of each of its Financial Years an actuarial review conducted by a duly
qualified independent actuarial company.






	21.3	 	Provision and contents of Compliance Certificate
	 
	21.3.1	 	The Parent shall supply a Compliance Certificate to the Agent with each set of its
audited consolidated Annual Financial Statements and each set of its consolidated Quarterly
Financial Statements.
	 
	21.3.2	 	The Compliance Certificate shall, amongst other things, set out (in reasonable detail)
computations as to compliance with Clause 22 (Financial Covenants) including confirmation
that the Parent is in compliance with Clause 22.2.1(e) (Requisite Rating).
	 
	21.3.3	 	Each Compliance Certificate shall be signed by two directors one of whom must be the Chief
Financial Officer of the Group and, if required to be delivered with the consolidated Annual
Financial Statements of the Parent, shall be reported on by the Parent’s Auditors in the form
agreed by the Parent and the Majority Lenders.
	 
	21.4	 	Requirements as to financial statements
	 
	21.4.1	 	The Parent shall procure that each set of Annual Financial Statements and Quarterly
Financial Statements includes a balance sheet, profit and loss account and cashflow
statement. In addition the Parent shall procure that:




51









 












	 	(a)	 	each set of Annual Financial Statements shall where required be audited by
the Auditors;
	 
	 	(b)	 	each set of Quarterly Financial Statements of the Parent includes:






	 	(i)	 	a cashflow forecast (comprising the Capital
Release Schedule) in respect of the Group relating to the twelve month
period commencing at the end of the relevant Financial Quarter;
	 
	 	(ii)	 	a statement by the directors of the Parent
commenting on the performance of the Group for the quarter to which the
financial statements relate and the Financial Year to date and any
material developments or material proposals affecting the Group or its
business; and
	 
	 	(iii)	 	a report setting out, in respect of each
Regulated Insurance Entity: (i) its capital resources; (ii) its Pillar
1 Capital Requirement; (iii) its ICA Capital Requirement; (iv) its ICG
Capital Requirement; and (v) any deductions made from its capital
resources when determining its compliance with its ICA Capital
Requirement or its ICG Capital Requirement.






	21.4.2	 	Each set of financial statements delivered pursuant to Clause 21.2 (Financial
Statements):






	 	(a)	 	shall be certified by the Chief Financial Officer of the Parent as giving
a true and fair view of (in the case of Annual Financial Statements for any
Financial Year), or fairly representing (in other cases), the financial condition
and operations of the relevant person or persons covered by those financial
statements as at the date as at which those financial statements were drawn up
and, in the case of the Annual Financial Statements, shall be
accompanied by any letter addressed to the management of the relevant company by
the Auditors and accompanying those Annual Financial Statements;
	 
	 	(b)	 	in the case of consolidated financial statements of the Group, shall be
accompanied by a statement by the Chief Financial Officer of the Parent comparing
actual performance for the period to which the financial statements
relate to:






	 	(i)	 	the projected performance for that period set
out in the Budget; and
	 
	 	(ii)	 	the actual performance for the corresponding
period in the preceding Financial Year of the Group; and






	 	(c)	 	shall be prepared using the Accounting Principles, accounting practices
and financial reference periods consistent with those applied in the preparation of
the Original Financial Statements of the Obligor or other member of the Group
concerned, unless, in relation to any set of financial statements, the Parent
notifies the Agent that there has been a change in the Accounting Principles or the
accounting practices and its Auditors (or, if appropriate, the Auditors of the
Obligor) deliver to the Agent:






	 	(i)	 	a description of any change necessary for those
financial statements to reflect the Accounting Principles or accounting
practices upon which the Original Financial Statements of the




52









 












	 	 	 	Obligor or other member of the Group concerned were prepared; and






	 	(ii)	 	sufficient information, in form and substance as
may be reasonably required by the Agent, to enable the Lenders to
determine whether Clause 22 (Financial Covenants) has been complied with
and to make an accurate comparison between the financial position
indicated in those financial statements and the Original Financial
Statements of the Obligor or other member of the Group concerned.






	 	Any reference in this Agreement to any financial statements shall be construed as a
reference to those financial statements as adjusted to reflect the basis upon which the
Original Financial Statements were prepared.






	21.4.3	 	If the Agent receives a report from the Parent’s Auditors pursuant to Clause 21.4.2(c)
above, the Majority Lenders (in consultation with the Parent and the Auditors) may require
such changes to the covenants set out in Clause 22 (Financial Covenants) as are necessary
solely to reflect the changes notified to them.
	 
	21.4.4	 	If the Agent wishes to discuss the financial position of any member of the Group with the
Auditors, the Agent may notify the Parent, stating the questions or issues which the Agent
wishes to discuss with the Auditors. In this event, the Parent must ensure that the Auditors
are authorised (at the expense of the Parent):






	 	(a)	 	to discuss the financial position of each member of the Group with the
Agent on request from the Agent;
	 
	 	(b)	 	to verify any financial information required by the Finance Documents to
be provided to the Agent;
	 
	 	(c)	 	to disclose to the Agent for the Finance Parties any information which
the Agent may reasonably request; and
	 
	 	(d)	 	to verify any figures required to calculate the financial covenants in
Clause 22 (Financial covenants).






	21.5	 	Budget






	 	(a)	 	The Parent shall supply to the Agent in sufficient copies for all the
Lenders, as soon as the same become available but in any event not less than 60 days
after the start of each of its Financial Years, an annual Budget for that Financial
Year.
	 
	 	(b)	 	The Parent shall ensure that each Budget:






	 	(i)	 	is in a format reasonably acceptable to the
Agent and includes a projected consolidated profit and loss, balance
sheet and cashflow statement for the Group, projected financial
covenant calculations, Capital Expenditure to be incurred and its
anticipated timing and a Capital Release Schedule;
	 
	 	(ii)	 	is prepared in accordance with the Accounting
Principles and the accounting practices and financial reference periods
applied to financial statements under Clause 21.2 (Financial
statements); and
	 
	 	(iii)	 	has been approved by the board of directors of the Parent.




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	 	(c)	 	If the Parent updates or changes the Budget, it shall promptly deliver to the
Agent, in sufficient copies for each of the Lenders, such updated or changed
Budget together with a written explanation of the main changes in that Budget.






	21.6	 	Presentations
	 
	 	 	Once in every Financial Year, or more frequently if requested to do so by the Agent if a
Lender reasonably suspects a Default is continuing or may have occurred or may occur, at
least two directors of the Parent (one of whom shall be the Chief Financial Officer of
the Parent) must give a presentation to the Finance Parties in London about the on-going
business and financial performance of the Group.
	 
	21.7	 	Year-end
	 
	21.7.1	 	The Parent shall procure that the end of each Financial Year of each member of the Group
falls on 31 December.
	 
	21.7.2	 	The Parent shall procure that each quarterly accounting period and each Financial Quarter of
each member of the Group ends on a Quarter Date.
	 
	21.8	 	Information: miscellaneous
	 
	21.8.1	 	The Parent shall supply to the Agent (in sufficient copies for all the Lenders, if the
Agent so requests):






	 	(a)	 	within 30 days after submission to the relevant governmental on
regulatory authority, all returns required to be prepared by any member of the Group
in accordance with any applicable law, rule, regulation or direction of the Bermuda
Monetary Authority, the FSA or any other governmental or regulatory
authority including, without limitation, copies of: (i) FSA Returns; (ii) the Group
Capital Resources Report; and (iii) Close Links Report;
	 
	 	(b)	 	at the same time as they are dispatched, copies of all documents
dispatched by the Parent to its shareholders generally (or any class of them) or
dispatched by the Parent or any Obligors to its creditors generally (or any class of
them);
	 
	 	(c)	 	promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which are current, threatened
or pending against any member of the Group, and which, if adversely
determined would involve a liability, or a potential or alleged liability,
exceeding US$2,000,000 (or its equivalent in other currencies);
	 
	 	(d)	 	written notice of any business or transaction undertaken by the Borrower
or any member of the Group involving (directly or indirectly) any of Sudan, Iran,
Myanmar (Burma), Cuba, North Korea or Syria, to the extent possible in advance of,
and in any event promptly upon, the Borrower or such member of the Group commencing
such business or transaction, together with sufficient details of such business or
transaction as any Finance Party may require to satisfy any sanctions-related laws,
regulations or requirements to which it is subject;
	 
	 	(e)	 	promptly, copies of any correspondence, documentation or
other communication dispatched by or to the FSA or other relevant regulatory body
in respect of any member of the Group’s regulatory capital requirements




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	 	(f)	 	promptly, copies of any agreement for the acquisition or disposal of a
Subsidiary or for an insurance business transfer to or from any member of the
Group, together with copies of all documents sent to policyholders in connection
with any such insurance business transfer;
	 
	 	(g)	 	promptly, such information as the Security Agent may reasonably require
about the Charged Property and compliance of the Obligors with the terms of any
Transaction Security Documents; and
	 
	 	(h)	 	promptly on request, such further information regarding the financial
condition, assets and operations of the Group and/or any member of the Group
(including any requested amplification or explanation of any item in the financial
statements, budgets or other material provided by any Obligor under this Agreement
and an up to date copy of its shareholders’ register (or equivalent in its
jurisdiction of incorporation)) as any Finance Party through the Agent may
reasonably request.






	21.8.2	 	The Parent shall give at least five Business Days’ written notice to the Security Agent of
any proposal by the Parent or the directors of the Parent to appoint an administrator. The
notice shall comply with the requirements of paragraph 26(3) of Schedule B1 of the Insolvency
Act 1986.
	 
	21.9	 	Notification of default
	 
	21.9.1	 	Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken
to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware
that a notification has already been provided by another Obligor).
	 
	21.9.2	 	Promptly upon a request by the Agent, the Parent shall supply to the Agent a certificate
signed by two of its directors or senior officers on its behalf 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).
	 
	21.10	 	“Know your customer” checks
	 
	21.10.1	 	If:






	 	(a)	 	the introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation made after the date of this
Agreement;
	 
	 	(b)	 	any change in the status of an Obligor or the composition of the
shareholders of an Obligor after the date of this Agreement; or
	 
	 	(c)	 	a proposed assignment or transfer by a Lender of any of its rights and/or
obligations under this Agreement to a party that is not a Lender prior to such
assignment or transfer,
	 
	 	(d)	 	obliges the Agent or any Lender (or, in the case of Clause 21.10.1(c)
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 (and the Parent shall ensure that each
Obligor shall) promptly upon the request of the Agent or any Lender supply, or
procure the supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself or on behalf of any Lender) or any Lender (for
itself or, in the case of the event described in Clause 21.10.1(c) above, on behalf
of any prospective new Lender) in order for the Agent, such Lender or, in the
case of the event described in Clause 21.10.1(c) above, any prospective new Lender
to carry out and be satisfied




55









 












	 	 	 	with the results of all necessary “know your customer” or other checks in relation
to any relevant person pursuant to the transactions contemplated in the Finance
Documents.






	21.10.2	 	Each Lender shall promptly upon the request of the Agent supply, or procure the supply of,
such documentation and other evidence as is reasonably requested by the Agent (for itself) in
order for the Agent to carry out and be satisfied with the results of all necessary “know your
customer” or other checks on Lenders or prospective new Lenders pursuant to the transactions
contemplated in the Finance Documents.
	 
	21.10.3	 	The Parent shall, by not less than 10 Business Days’ prior written notice to the Agent,
notify the Agent (which shall promptly notify the Lenders) of its intention to request that
one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 26 (Changes to the
Obligors).
	 
	21.10.4	 	Following the giving of any notice pursuant to Clause 21.10.3 above, if the accession of
such Additional Obligor obliges the Agent or any Lender to comply with “know your customer”
or similar identification procedures in circumstances where the necessary information is not
already available to it, the Parent shall promptly upon the request of the Agent or any Lender
supply, or procure the supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on
behalf of any prospective new Lender) in order for the Agent, or such Lender or any
prospective new Lender to carry out and be satisfied it has complied with all necessary “know
your customer” or other checks in relation to any relevant person pursuant to the accession of
such Subsidiary to this Agreement as an Additional Obligor.
	 
	22	 	Financial Covenants
	 
	22.1	 	Financial definitions
	 
	 	 	In this Clause 22:
	 
	 	 	Consolidated Tangible Net Worth: means, at any time, the aggregate of the Equity
Shareholders Funds of a company on the last day of the Relevant Period minus (i) the
aggregate of the Permitted Financial Indebtedness; (ii) any liabilities incurred by the
company in the ordinary course of its business but not paid on the last day of the
Relevant Period; (iii) any assets or monies that may be required to cover the cost of
forecast redundancies within the Group; (iv) any loans between members of the Group
included as an asset on the balance sheet of that company; and (v) any goodwill,
Intellectual Property or other intangible assets included in the calculation of Equity
Shareholder Funds for that company.
	 
	 	 	Equity Shareholders Funds: means the aggregate amount of paid up or credited as paid up
on the issued share capital of a company (including on the share premium account)
directly or indirectly owned by an Obligor and of the amounts standing to the credit of
revenue reserves of a company referable to the ownership of an Obligor, excluding in
each case, for the avoidance of doubt, any minority interests.
	 
	 	 	Facility Debt: means on the last day of the Relevant Period, the aggregate of the
Group’s consolidated Financial Indebtedness in respect of the Facility.
	 
	 	 	Financial Quarter: means the period commencing on the day after one Quarter Date and
ending on the next Quarter Date.




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	 	 	 	Financial Year: means each period of twelve months ending on 31 December.
	 
	 	 	 	Gearing Ratio: means, in respect of any Relevant Period, the ratio of the consolidated
Financial Indebtedness of the Parent on the last day of that Relevant Period to its
Consolidated Tangible Net Worth in respect of that Relevant Period.
	 
	 	 	 	Net Worth Cover: means the ratio of the aggregate Consolidated Tangible Net Worth of all
the Material Companies (except Enstar Australia Holdings Pty Limited and AG Australia
Holdings Limited) to Facility Debt.
	 
	 	 	 	Quarter Date: means each of 31 March, 30 June, 30 September and 31 December.
	 
	 	 	 	Regulated Entity means each of the Material Companies which is a Regulated Insurance
Entity.
	 
	 	 	 	Regulatory Cover: means, in relation a Regulated Entity, the ratio of the capital
resources of the Regulated Entity as determined in accordance with Section 2.2 of the
Integrated Prudential Sourcebook for Insurers as amended from time to time (including as
required to meet solvency requirements) or, if appropriate, any equivalent documentation,
guidance or regulation in any other jurisdiction to the capital resources requirement of
the Regulated Entity as determined in accordance with Section 2.1 of the Integrated
Prudential Sourcebook for Insurers as amended from time to time (including as required to
meet solvency requirements) or, if appropriate, any equivalent documentation, guidance or
regulation in any other jurisdiction.
	 
	 	 	 	Relevant Period: means:






	 	(a)	 	for the purposes of any calculation in a Compliance Certificate to be
delivered pursuant to Clause 21.3 (Provision and contents of Compliance Certificate)
each period of twelve months (or, if shorter, the period from the date of this
Agreement) ending on each Quarter Date; and
	 
	 	(b)	 	for all other purposes each period of twelve months ending on the
relevant calculation date.






	22.2	 	Financial condition
	 
	22.2.1	 	The Parent shall ensure that:






	 	(a)	 	Borrower Net Worth: The Consolidated Tangible Net Worth of the Parent
shall at all times be more than US$750,000,000.
	 
	 	(b)	 	Borrower Gearing Ratio: The Gearing Ratio shall not at any time be more
than 0.5:1.
	 
	 	(c)	 	Regulatory Cover: Regulatory Cover of each Regulated Entity shall at all
time be more than 1.1:1;
	 
	 	(d)	 	Net Worth Cover: Net Worth Cover shall at all time be more than 2.0:1;
	 
	 	(e)	 	Requisite Rating:






	 	(i)	 	The average rating of the aggregate investment
portfolio (determined by reference to the individual rating given by
the Rating Agency to each investment) of the Material Companies shall
not at any time be less than A-;




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	 	(ii)	 	the short term rating and/or long term rating of investments as
determined by the Rating Agency for at least 87.5% of the total value
of the investments held by the Material Companies have a rating of not
less than BBB or are held in cash and no investments are advised by
J.C. Flowers & Co. LLC or its associated parties,






	 	 	 	and provided that in each case no investment shall be held in asset backed
securities, CDOs or other structured products.






	22.3	 	Financial testing
	 
	22.3.1	 	The financial covenants set out in Clauses 22.2.1(a) (Borrower Net Worth) to 22.2.1(e)
(Requisite Rating) shall be calculated in accordance with the Accounting Principles and tested
first by reference to the Quarterly Financial Statements and where available, by reference to
the Annual Financial Statements (each delivered in accordance with Clause 21.2(a) and (b)
(Financial Statements) and each Compliance Certificate delivered pursuant to Clause 21.3
(Provision and contents of Compliance Certificate)).
	 
	22.3.2	 	No item shall be deducted or credited more than once in any calculation.
	 
	22.3.3	 	Where an amount in any financial statement or Compliance Certificate is not denominated in
US Dollars, it shall be converted into US Dollars at the rate specified in the financial
statements so long as such rate has been set in accordance with the Accounting Principles.
	 
	22.3.4	 	The financial covenants in Clauses 22.2.1(a) (Borrower Net Worth) to 22.2.1(e) (Requisite
Rating) of Clause 22.2 (Financial condition) shall apply on a continuing basis but shall be
tested on each Quarter Date commencing with the 30 June 2011 Quarter Date.
	 
	22.4	 	Equity cure-Regulatory Cover
	 
	22.4.1	 	No Event of Default under Clause 24.2 (Financial Covenants and other obligations) in
relation to Clauses 22.2.1(c) (Regulatory Cover) will occur if:






	 	(a)	 	the proceeds of an additional contributed surplus or any Permitted Share
Issue permitted by paragraph (b) of the definition of that term (which are
designated in writing by the Parent to the Agent as being provided for the purpose
of this Clause 22.4 (Equity cure-Regulatory Cover)) and/or any debt (subordinated
on terms approved by the Agent acting reasonably) (in each case the New Regulatory
Investment) is invested in the relevant Regulated Entity within 5 Business Days of
the date on which the Parent becomes aware of a breach of Clause 22.2.1(c)
(Regulatory Cover).
	 
	 	(b)	 	promptly following receipt by the relevant Regulated Entity of the
proceeds of such New Regulatory Investment (and in any event prior to the expiry of
such 5 Business Day period), a certificate signed by the finance director of the
Parent is delivered to the Agent confirming that on recalculating the
Regulatory Cover financial covenant set out in Clause 22.2.1(c) (Regulatory Cover)
would be complied with and attaching reasonable details of such calculations.






	22.5		Equity cure- Net Worth Cover
	 
	 	 	No Event of Default under Clause 24.2 (Financial Covenants and other obligations) in
relation to Clauses 22.2.1(d) (Net Worth Cover) will occur if:




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	 	(a)	 	the proceeds of an additional contributed surplus or any Permitted Share Issue
permitted by paragraph (b) of the definition of that term (which are designated in
writing by the Parent to the Agent as being provided for the purpose of this
Clause 22.5) and/or any debt (subordinated on terms approved by the Agent
acting reasonably) (in each case the New Investment) is invested in a
Material Company whose shares are subject to the Transaction Security within 5
Business Days of the date on which the Parent becomes aware of a breach of Clause
22.2.1(d) (Net Worth Cover).
	 
	 	(b)	 	promptly following receipt by the relevant Material Company of the
proceeds of such New Investment (and in any event prior to the expiry of such 5
Business Day period), a certificate signed by the finance director of the Parent is
delivered to the Agent confirming that on recalculating the Net Worth Cover
financial covenant set out in Clause 22.2.1(d) (Net Worth Cover) for the period (and
for these purposes the amount of the New Investment shall be included in calculating
Consolidated Tangible Net Worth) in respect of which the breach arose, and on the
basis that the New Investment is deemed to have been made immediately prior to the
relevant Quarter Date, such financial covenant would be complied with (and such
certificate shall attach reasonable details of such calculations).






	 	 	No more than two New Investments may be made until the Termination Date and no two New
Investments may be made in consecutive Financial Quarters.
	 
	23	 	General Undertakings
	 
	 	 	The undertakings in this Clause 23 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any Commitment is
in force.
	 
	23.1	 	Authorisations
	 
	 	 	Each Obligor shall (and the Parent shall ensure that each Material Company will)
promptly:
	 
	 	 	(a) obtain, comply with and do all that is necessary to maintain in full
force and effect; and
	 
	 	 	(b) supply certified copies to the Agent of,
	 
	 	 	any Authorisation required under any law or regulation of a Relevant Jurisdiction to
enable it to: (i) perform its obligations under the Finance Documents; (ii) ensure the
legality, validity, enforceability or admissibility in evidence of any Finance Document;
and (iii) carry on its business where failure to do so has or is reasonably likely to
have a Material Adverse Effect.
	 
	23.2	 	Compliance with laws
	 
	 	 	Each Obligor shall (and the Parent shall ensure that each Material Company will) comply
in all respects with all laws to which it may be subject, if failure so to comply has or
is reasonably likely to have a Material Adverse Effect.
	 
	23.3	 	Taxation
	 
	23.3.1	 	Each Obligor shall (and the Parent shall ensure that each Material Company will) pay and
discharge all Taxes imposed upon it or its assets within the time period allowed without
incurring penalties unless and only to the extent that:






	 	(a)	 	such payment is being contested in good faith;




59









 












	 	(b)	 	adequate reserves are being maintained for those Taxes and the costs
required to contest them have been disclosed in its latest financial statements
delivered to the Agent under Clause 21.2.1(a) (Financial statements); and
	 
	 	(c)	 	such payment can be lawfully withheld and failure to pay those Taxes does
not have or is not reasonably likely to have a Material Adverse Effect.






	23.3.2	 	No member of the Group may change its residence for Tax purposes.
	 
	23.4	 	Merger
	 
	 	 	Other than in the case of a Permitted Transaction which is referred to in
paragraphs (a) and (c) of the definition of that term, no Obligor shall (and the Parent
shall ensure that no Material Company will) enter into (or agree to enter into) any
amalgamation, demerger, merger, consolidation or corporate reconstruction other than any
solvent liquidation or reorganisation.
	 
	23.5	 	Change of business and Investment Policy






	 	(a)	 	The Parent shall procure that no substantial change is made to the general
nature of the business of the Parent or the Group taken as a whole from that carried
on at the date of this Agreement.
	 
	 	(b)	 	The Parent shall procure that:






	 	(i)	 	no change is made to the Investment Policy
in effect as at the date of this Agreement without the consent of the
Agent; and
	 
	 	(ii)	 	that all investments made by the
Group comply with the Investment Policy (upon making the investment
and thereafter).






	23.6	 	Acquisitions
	 
	23.6.1	 	Except as permitted under Clause 23.6.2 below, no Obligor shall (and the Parent shall
ensure that no Material Company will) acquire a company or any shares or securities or a
business or undertaking (or, in each case, any interest in any of them).
	 
	23.6.2	 	Clause 23.6.1 above does not apply to:






	 	(a)	 	a Permitted Acquisition; or
	 
	 	(b)	 	an acquisition of an insurance company, business or undertaking other
than where the underlying insurance exposures of such insurance company, business
or undertaking are represented by life business.






	23.7	 	Joint ventures
	 
	 	 	No Obligor shall (and the Parent shall ensure that no Material Company will):






	 	(a)	 	enter into, invest in or acquire (or agree to acquire) any shares,
stocks, securities or other interest in any Joint Venture; or
	 
	 	(b)	 	transfer any assets or lend to or guarantee or give an indemnity for or
give Security for the obligations of a Joint Venture or maintain the solvency of or
provide working capital to any Joint Venture (or agree to do any of the foregoing).




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	23.8	 	Holding Companies
	 
	 	 	No Obligor other than the Parent shall trade, carry on any business, own any assets or
incur any liabilities except for:






	 	(a)	 	the provision of administrative services (excluding treasury services) to
other members of the Group of a type customarily provided by a holding company to
its Subsidiaries;
	 
	 	(b)	 	ownership of shares in its Subsidiaries, intra-Group debit balances,
intra-Group credit balances and other credit balances in bank accounts, cash and
Cash Equivalent Investments;
	 
	 	(c)	 	incurring Financial Indebtedness in respect of a Permitted Loan falling
within paragraph (d) of the definition of “Permitted Loan” and the making of loans
falling with paragraphs (d) or (f) of the definition of “Permitted Loan”; or
	 
	 	(d)	 	any liabilities under the Finance Documents to which it is a party and
professional fees and administration costs in the ordinary course of business as a
holding company,






	 	 	 	and this Clause shall prevail if but for this Clause a transaction would otherwise be a
Permitted Disposal, Permitted Financial Indebtedness, a Permitted Guarantee, a Permitted
Loan, Permitted Security or a Permitted Transaction or be permitted by Clause 23.25
(Intra-Group Transactions).






	23.9	 	Preservation of assets
	 
	 	 	Each Obligor shall (and the Parent shall ensure that each Material Company will)
maintain in good working order and condition (ordinary wear and tear excepted) all of
its assets necessary or desirable in the conduct of its business if failure to do so has
or is reasonably likely to have a Material Adverse Effect.
	 
	23.10	 	Pari passu ranking
	 
	 	 	Each Obligor shall ensure that at all times any unsecured and unsubordinated claims of a
Finance Party against it under the Finance Documents rank at least pari passu with the
claims of all its other unsecured and unsubordinated creditors except those creditors
whose claims are mandatorily preferred by laws of general application to companies.
	 
	23.11	 	Negative pledge
	 
	23.11.1	 	Except as permitted under Clause 23.11.2 below:






	 	(a)	 	No Obligor shall (and the Parent shall ensure that no Material Company
will) create or permit to subsist any Security over any of its assets.
	 
	 	(b)	 	No Obligor shall (and the Parent shall ensure that no Material Company 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
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




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	 	(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. A transaction referred to in this paragraph (c) is termed Quasi-Security.






	23.11.2	 	Clause 23.11.1 above does not apply to any Security or (as the case may be)
Quasi-Security, which is:






	 	(i)	 	Permitted Security; or
	 
	 	(ii)	 	given under the Finance Documents.






	23.12	 	Disposals
	 
	23.12.1	 	Except as permitted under Clause 23.12.2 below, no Obligor shall (and the Parent shall
ensure that no Material Company will) enter into a single transaction or a series of
transactions (whether related or not) and whether voluntary or involuntary to sell, lease,
surrender, set-off, transfer, licence or otherwise dispose of any asset.
	 
	23.12.2	 	Clause 22.12.1 above does not apply to any sale, lease, transfer or other disposal which
is:






	 	(a)	 	a Permitted Disposal;
	 
	 	(b)	 	a Permitted Transaction which is referred to in paragraph (a) of the
definition of that term
	 
	 	(c)	 	a Permitted Transfer.






	23.13	 	Arm’s length basis
	 
	23.13.1	 	Except as permitted by Clause 23.13.2 below, no Obligor shall (and the Parent shall ensure
no Material Company will) enter into any transaction with any person except on bona fide arm’s
length terms.
	 
	23.13.2	 	The following transactions shall not be a breach of Clause 23.13.1:






	 	(a)	 	intra-Group transactions permitted under Clause 23.25 (Intra-Group transactions); and
	 
	 	(b)	 	fees, costs and expenses payable under the Finance Documents in the
amounts set out in the Finance Documents delivered to the Agent under Clause 4.1
(Initial conditions precedent) or agreed by the Agent.






	23.14	 	Loans or credit
	 
	23.14.1	 	Except as permitted under Clause 23.14.2 below, no Obligor shall (and the Parent shall
ensure that no Material Company will) be a creditor in respect of any Financial Indebtedness.
	 
	23.14.2	 	Clause 23.14.1 above does not apply to:






	 	(a)	 	a Permitted Loan; or
	 
	 	(b)	 	a Permitted Transaction which is referred to in paragraph (a) of the
definition of that term.




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	23.15	 	No Guarantees or indemnities
	 
	23.15.1	 	Except as permitted under Clause 23.15.2 below, no Obligor shall (and the Parent shall
ensure that no Material Company will) incur or allow to remain outstanding any guarantee, bond
or indemnity in respect of any obligation of any person.
	 
	23.15.2	 	Clause 23.15.1 above does not apply to a guarantee which is:






	 	(a)	 	a Permitted Guarantee; or
	 
	 	(b)	 	a Permitted Transaction which is referred to in paragraph (a) of the
definition of that term.






	23.16	 	Financial Indebtedness
	 
	23.16.1	 	Except as permitted under Clause 23.16.3 below, no Obligor shall (and the Parent shall
ensure that no Material Company will) incur or allow to remain outstanding any Financial
Indebtedness.
	 
	23.16.2	 	No Obligor may (and the Parent shall ensure that no Material Company shall) repay any
Financial Indebtedness owed to any person that is not an Obligor or a Material Company (other
than the Existing Facilities) with the proceeds of any loan, dividend, distribution or other
payment received by it from any Obligor or Material Company.
	 
	23.16.3	 	Clause 23.16.1 above does not apply to Financial Indebtedness which is:






	 	(a)	 	Permitted Financial Indebtedness;
	 
	 	(b)	 	contemplated by paragraph (a) of the definition of Permitted Transaction; or
	 
	 	(c)	 	incurred by the Parent.






	23.17	 	Share capital
	 
	 	 	No Obligor shall (and the Parent shall ensure no Material Company will) issue any shares
except pursuant to a Permitted Share Issue.
	 
	23.18	 	Pensions
	 
	23.18.1	 	The Parent shall ensure that all pension schemes operated by or maintained for the benefit
of members of the Group incorporated in the United Kingdom and/or any of their employees are
funded in accordance with the requirements of the Pensions Act 1995 in relation to the minimum
funding requirement (where the scheme is subject to the minimum funding requirement under that
Act) and in accordance with the requirements of the Pensions Act 2004 in relation to the
statutory funding objective (where the scheme is subject to the statutory funding objective
under that Act) and that no action or omission is taken by any such member of the Group in
relation to such a pension scheme which has or is reasonably likely to have a Material Adverse
Effect (including the termination or commencement of winding-up proceedings of any such
pension scheme or any member of the Group ceasing to employ any such member of such a pension
scheme).
	 
	23.18.2	 	Except for the pension schemes (if any) for the time being operated by the Parent or in
which it participates, the Parent shall ensure that no member of the Group incorporated in the
United Kingdom is or has been at any time an employer (for the purposes of Sections 38 to 51
of the Pensions Act 2004) of an occupational pension scheme which is not a money purchase
scheme (both terms as defined in




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	 	 	 	the Pension Schemes Act 1993) or “connected” with or an “associate” of (as those terms
are under in Sections 39 or 43 of the Pensions Act 2004) such an employer.






	23.18.3	 	The Parent shall ensure that each member of the Group incorporated outside the United
Kingdom is in compliance in all material respects with all applicable laws, regulations and
contracts relating to the provision of pension schemes and any pension scheme(s) it operates
or participates in.
	 
	23.18.4	 	The Parent shall deliver to the Agent at such times as those reports are prepared in order
to comply with the then current statutory or auditing requirements (as applicable either to
the trustees of any relevant schemes or to the Parent), actuarial reports in relation to all
pension schemes mentioned in Clause 23.18.1 and 23.18.3 above.
	 
	23.18.5	 	The Parent shall promptly notify the Agent of any material change in the rate of
contributions to any pension schemes mentioned in Clause 23.18.1 or 23.18.3 above paid or
recommended to be paid (whether by the scheme actuary or otherwise) or required (by law or
otherwise).
	 
	23.19	 	Access
	 
	 	 	Each Obligor shall, and the Parent shall ensure that each Material Company will (not
more than once in every Financial Year unless the Agent reasonably suspects a Default is
continuing or may occur), permit the Agent and/or the Security Agent and/or accountants
or other professional advisers and contractors of the Agent or Security Agent free
access at all reasonable times and on reasonable notice at the risk and cost of the
Obligor to (a) the premises, assets, books, accounts and records of each member of the
Group and (b) meet and discuss matters with Richard Harris, David Rocke and Gareth
Nokes.
	 
	23.20	 	Intellectual Property
	 
	23.20.1	 	Each Obligor shall and the Parent shall procure that each Material Company will:






	 	(a)	 	preserve and maintain the subsistence and validity of the Intellectual
Property necessary for its business;
	 
	 	(b)	 	use reasonable endeavours (including the institution of legal
proceedings) to prevent any infringement in any material respect of the Intellectual
Property;
	 
	 	(c)	 	promptly notify the Agent if it becomes aware of any infringement or
challenge to the validity, enforceability or ownership of any Intellectual Property
and supply the Security Agent with all information relating to it which is
reasonably requested by the Agent;
	 
	 	(d)	 	make registrations and pay all registration fees and taxes necessary to
maintain the Intellectual Property in full force and effect and record its interest
in that Intellectual Property;
	 
	 	(e)	 	not use or permit the Intellectual Property to be used in a way or take
any step or omit to take any step in respect of that Intellectual Property which may
materially and adversely affect the existence or value of that Intellectual Property
or imperil the right of any member of the Group to use such property; and
	 
	 	(f)	 	not discontinue the use of the Specified Intellectual Property (as
defined in any Transaction Security Document),




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	 	 	where failure to do so in the case of Clauses 23.20.1(a), 23.20.1(b) and 23.20.1(d)
above, or, in the case of Clauses 23.20.1(e) and 23.20.1(f) above, such use, permission
to use, omission or discontinuation is reasonably likely to have a Material Adverse
Effect.






	23.20.2	 	Failure to comply with any part of Clause 23.20.1 above shall not be a breach of Clause
23.20.1 to the extent that any dealing with Intellectual Property which would otherwise be a
breach of Clause 23.20.1 is contemplated by paragraph (a) of the definition of Permitted
Transaction.
	 
	23.21	 	Amendments
	 
	23.21.1	 	No Obligor shall (and the Parent shall ensure that no other Obligor or member of the Group
will) amend, vary, novate, supplement, supersede, waive or terminate any term of a Finance
Document, the constitutional documents of any company whose shares are subject to the
Transaction Security or any other document delivered to the Agent pursuant to Clause 4.1
(Initial conditions precedent) or Clause 26 (Changes to the Obligors) or enter into any
agreement with any shareholders of the Parent except in writing in a way which could not
reasonably be expected to materially and adversely affect the interests of the Lender and
would not change the date, amount or method of payment of the dividends on the Parent’s
shares.
	 
	23.21.2	 	The Parent shall promptly supply to the Agent a copy of any document relating to any of the
matters referred to in Clause 23.21.1 above.
	 
	23.22	 	Financial assistance
	 
	 	 	Each Obligor shall (and the Parent shall procure each Material Company will) comply in
all respects with any legislation governing the granting of financial assistance in its
jurisdiction of incorporation including in relation to the execution of the Transaction
Security Documents and payment of amounts due under this Agreement.
	 
	23.23	 	Treasury Transactions
	 
	 	 	No Obligor shall (and the Parent shall procure that no Material Company will) enter into
any Treasury Transaction except for the forward exchange contract entered into between
Cumberland Holdings Limited and National Australia Bank Limited prior to the date of
this Agreement.
	 
	23.24	 	Further assurance
	 
	23.24.1	 	Each Obligor shall (and the Parent shall procure that each Material Company will) promptly
do all such acts or execute all such documents (including assignments, transfers, mortgages,
charges, notices and instructions) as the Security Agent may reasonably specify and in such
form as the Security Agent may reasonably require (in favour of the Security Agent or its
nominee(s)) in order to:






	 	(a)	 	perfect or protect the Security created or intended to be created under
or evidenced by the Transaction Security Documents (which may include the execution
of a mortgage, charge, assignment or other Security over all or any of the assets
which are, or are intended to be, the subject of the Transaction Security) or for
the exercise of any rights, powers and remedies of the Security Agent or the
Finance Parties provided by or pursuant to the Finance Documents or by law;




65









 












	 	(b)	 	confer on the Security Agent or confer on the Finance Parties, Security over
any property and assets of that Obligor located in any jurisdiction which is (to
the extent permitted by local law) equivalent or similar to the Security intended
to be conferred by or pursuant to the Transaction Security Documents;
and/or
	 
	 	(c)	 	facilitate the realisation of the assets which are, or are intended to
be, the subject of the Transaction Security.






	23.24.2	 	Each Obligor shall (and the Parent shall procure that each Material Company shall) take
all such action as is available to it (including making all filings and registrations) as may
be necessary for the purpose of the creation, perfection, protection or maintenance of any
Security conferred or intended to be conferred on the Security Agent or the Finance Parties
by or pursuant to the Finance Documents.
	 
	23.25	 	Intra-Group transactions
	 
	23.25.1	 	Without the prior consent of the Agent, no Obligor or Material Company may enter into any
transaction (whether by way of disposal, investment, loan, borrowing, guarantee or otherwise)
with, or in respect of the obligations of, any other member of the Group save and except where
such transaction is a Permitted Transaction, a Permitted Disposal, Permitted Financial
Indebtedness, a Permitted Guarantee or a Permitted Loan and is not unlawful under any law or
regulation in any relevant jurisdiction including under any applicable financial assistance
legislation.
	 
	23.25.2	 	If the relevant intra-Group transaction contemplated by Clause 23.25.1 above is a disposal
of assets from one Obligor to another and if Transaction Security had been granted by the
Obligor disposing of such asset then the asset must be either transferred subject to such
Security or the acquiring Obligor must grant equivalent Security over that asset in favour of
the Security Agent.
	 
	23.26	 	Dividends and share redemption
	 
	 	 	No Obligor will (and the Parent will ensure that no Material Company will):






	 	(a)	 	declare, make or pay any dividend, charge, fee or other distribution (or
interest on any unpaid dividend, charge, fee or other distribution) (whether in cash
or in kind) on or in respect of its share capital (or any class of its share
capital) or any additional paid in capital;
	 
	 	(b)	 	repay or distribute any dividend or share premium reserve;
	 
	 	(c)	 	pay or allow any Material Company pay any management, advisory or other
fee to or to the order of any of the shareholders of the Parent; or
	 
	 	(d)	 	redeem, repurchase, defease, retire, reduce, cancel or repay any of its
share capital or resolve to do so,






	 	 	except for:






	 	(i)	 	a dividend, charge, fee or other
distribution to the Parent or any of its wholly owned Subsidiaries; or
	 
	 	(ii)	 	a dividend or other distribution by the Parent provided that:
	 
	 	(A)	 	at the time such dividend or distribution is
declared no Default is continuing; and




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	 	(B)	 	the payment of that dividend or distribution would not cause (x)
the Net Worth Cover to be less than or equal to 2.0:1 or (y) the
Consolidated Tangible Net Worth of the Parent to be less than or equal
to US$750,000,000.






	23.27	 	Regulatory Compliance
	 
	 	 	Each Obligor shall observe and comply with all applicable acts, byelaws and regulations
(including, without limitation, under the Financial Services and Markets Act 2000 (and
related subordinate legislation) and the FSA Handbook (as amended from time to time) and
any conditions or requirements prescribed under any applicable acts, byelaws and
regulations), the failure to observe or comply with which would reasonably be expected to
have a Material Adverse Effect.
	 
	23.28	 	Insurance






	 	(a)	 	Each Obligor shall (and the Parent shall ensure that each member of the
Group will) maintain insurances on and in relation to its business and assets
against those risks and to the extent as is usual for companies carrying on the same
or substantially similar business.
	 
	 	(b)	 	All insurances must be with reputable independent insurance companies or
underwriters.






	23.29	 	Transfer of Capital Release Amount
	 
	 	 	On each date on which the Capital Release Amount in relation to any relevant member of
the Group is greater than zero, each Obligor shall (and shall procure that each member
of the Group shall) procure that an amount equal to the relevant Capital Release Amount
on that date is promptly transferred to the CRA Account of the Parent by way of
dividend, loan or otherwise (subject to the other provisions of this Agreement).
	 
	24	 	Events Of Default
	 
	 	 	Each of the events or circumstances set out in this Clause 24 is an (Event of
Default).
	 
	24.1	 	Non-payment
	 
	 	 	An Obligor does not pay on the due date any amount payable pursuant to a Finance
Document in the manner in which it is expressed to be payable unless:






	 	(a)	 	its failure to pay is caused by:






	 	(i)	 	administrative or technical error by a bank in
the transmission of funds; or
	 
	 	(ii)	 	a Disruption Event; and






	 	(b)	 	payment is made within 5 Business Days of its due date.






	24.2	 	Financial covenants and other obligations
	 
	24.2.1	 	Any requirement of Clause 22 (Financial Covenants) is not satisfied.
	 
	24.2.2	 	An Obligor does not comply with the provisions of Clauses 21 (Information Undertakings),
Clause 23.4 (Merger) to 23.8 (Holding Companies) (inclusive), Clauses 23.11 (Negative pledge)
to 23.18 (Pensions) (inclusive), or Clause 23.21 (Amendments).




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	24.2.3	 	An Obligor does not comply with any provision of any Transaction Security Document.
	 
	24.3	 	Other obligations
	 
	24.3.1	 	An Obligor does not comply with any provision of the Finance Documents (other than those
referred to in Clause 24.1 (Non-payment) and Clause 24.2 (Financial covenants and other
obligations)).
	 
	24.3.2	 	No Event of Default under Clause 24.3.1 above will occur if the failure to comply is capable
of remedy and is remedied within 10 Business Days after the earlier of the Agent giving notice
to the Parent or relevant Obligor or the Parent or an Obligor becoming aware of the failure to
comply.
	 
	24.4	 	Misrepresentation
	 
	24.4.1	 	Any representation, warranty 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 is or proves to have been incorrect or misleading when
made or deemed to be made.
	 
	24.4.2	 	No Event of Default under Clause 24.4.1 above will occur if the failure to comply is capable
of remedy and is remedied within 10 Business Days after the earlier of the Agent giving notice
to the Obligor’s Agent or relevant Obligor or the Obligor’s Agent or an Obligor becoming aware
of the failure to comply.
	 
	24.5	 	Cross default
	 
	24.5.1	 	Any Financial Indebtedness of any member of the Group is not paid when due nor within any
originally applicable grace period.
	 
	24.5.2	 	Any Financial Indebtedness of 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).
	 
	24.5.3	 	Any commitment for any Financial Indebtedness of 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).
	 
	24.5.4	 	Any creditor of any member of the Group becomes entitled to declare any Financial
Indebtedness of any member of the Group due and payable prior to its specified maturity as a
result of an event of default (however described).
	 
	24.5.5	 	No Event of Default will occur under this Clauses 24.5 if the aggregate amount of Financial
Indebtedness or commitment for Financial Indebtedness falling within Clauses 24.5.1 to 24.5.4
above is less than:






	 	(a)	 	US$10,000,000, in respect of the Parent;
	 
	 	(b)	 	zero, in respect of any Obligor (other than the Parent) or Material
Company; or
	 
	 	(c)	 	US$5,000,000, in respect of any other member of the Group.






	24.6	 	Insolvency
	 
	24.6.1	 	An Obligor or any member of the Group is unable or admits inability to pay its debts as
they fall due or is deemed to or declared to be unable to pay its debts under applicable law,
suspends or threatens to suspend making payments on any of its debts or, by reason of actual
or anticipated financial difficulties, commences




68









 












	 	 	negotiations with one or more of its creditors with a view to rescheduling any of its
indebtedness.
	 
	24.6.2	 	The value of the assets of any Obligor or any member of the Group is less than its
liabilities (taking into account contingent and prospective liabilities).
	 
	24.6.3	 	A moratorium is declared in respect of any indebtedness of any Obligor or any member of the
Group. If a moratorium occurs, the ending of the moratorium will not remedy any Event of
Default caused by that moratorium.
	 
	24.7	 	Insolvency proceedings
	 
	24.7.1	 	Any corporate action, legal proceedings or other procedure or step is taken in relation to:






	 	(a)	 	the suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution,
administration or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of any Obligor or any member of the
Group;
	 
	 	(b)	 	a composition, compromise, assignment or arrangement with any creditor of
any Obligor or any member of the Group;
	 
	 	(c)	 	the appointment of a liquidator, receiver,
administrative receiver, administrator, compulsory manager or other similar
officer in respect of any Obligor or any member of the Group or any of its assets;
or
	 
	 	(d)	 	enforcement of any Security over any assets of any Obligor or any member
of the Group,
	 
	 	or any analogous procedure or step is taken in any jurisdiction.






	24.7.2	 	Clause 24.7.1 above shall not apply to any winding-up petition which is frivolous or
vexatious and is discharged, stayed or dismissed within 14 days of
commencement, or, if earlier, the date on which it is advertised.
	 
	24.8	 	Creditors’ process
	 
	 	 	Any expropriation, attachment, sequestration, distress or execution or any analogous
process in any jurisdiction affects any asset or assets of an Obligor or a member of the
Group having an aggregate value of US$5,000,000 or more and is not discharged within 7
days.
	 
	24.9	 	Unlawfulness and invalidity
	 
	24.9.1	 	It is or becomes unlawful for an Obligor, to perform any of its obligations under the
Finance Documents or any Transaction Security created or expressed to be created or evidenced
by the Transaction Security Documents ceases to be effective.
	 
	24.9.2	 	Any obligation or obligations of any Obligor under any Finance Document are not (subject to
the Legal Reservations) or cease to be legal, valid, binding or enforceable and the
cessation individually or cumulatively materially and adversely affects the interests of the
Lenders under the Finance Documents.
	 
	24.9.3	 	Any Finance Document ceases to be in full force and effect or any Transaction Security
ceases to be legal, valid, binding, enforceable or effective or is alleged by a party to it
(other than a Finance Party) to be ineffective.




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	24.10	 	Cessation of business
	 
	 	 	Any Obligor or any member of the Group suspends or ceases to carry on (or threatens
to suspend or cease to carry on) all or a material part of its business except as a
result of a disposal which is a Permitted Disposal or a Permitted Transaction which is
contemplated in paragraph (a) of the definition of that term.
	 
	24.11	 	Change of ownership
	 
	 	 	An Obligor (other than the Parent) ceases to be a wholly-owned Subsidiary of the
Parent.
	 
	24.12	 	Amending Constitutional Documents
	 
	 	 	Any Borrower amends, varies, supplements, supersedes, waives or terminates any
provision of its Constitutional Documents which could adversely affect the interests of
the Finance Parties without the prior written consent of the Majority Lenders.
	 
	24.13	 	Audit qualification
	 
	 	 	The Auditors of the Group qualify the audited annual consolidated financial
statements of the Parent.
	 
	24.14	 	Expropriation
	 
	 	 	The authority or ability of any Obligor or any member of the Group to conduct its
business is limited or wholly or substantially curtailed by any seizure, expropriation,
nationalisation, intervention, restriction or other action by or on behalf of any
governmental, regulatory or other authority or other person in relation to any Obligor
or any member of the Group or any of its assets.
	 
	24.15	 	Repudiation and rescission of agreements
	 
	 	 	An Obligor (or any other relevant party other than a Finance Party) or the
Shareholder rescinds or purports to rescind or repudiates or purports to repudiate a
Finance Document or any of the Transaction Security or evidences an intention to rescind
or repudiate a Finance Document or any Transaction Security.
	 
	24.16	 	Litigation
	 
	 	 	Any litigation, arbitration, administrative, governmental, regulatory or other
investigations, proceedings or disputes are commenced or threatened in relation to the
Finance Documents or the transactions contemplated in the Finance Documents or against any
Obligor or any member of the Group or its assets and which if successful would be
reasonably likely to have a Material Adverse Effect.
	 
	24.17	 	Regulatory Sanctions
	 
	 	 	Any fine, levy or sanctions are imposed upon any member of the Group by the FSA or
by any equivalent regulatory authority in any other jurisdiction or under FSMA or any
equivalent legislation or regulation in any other jurisdiction which the Majority Lenders
reasonably believe has or is reasonably likely to have a Material Adverse Effect.
	 
	24.18	 	Cessation of licences






	 	(a)	 	The cessation, variation or imposition of limitations (for any reason) of any
consent, authorisation, licence and/or exemption which is required to enable the
Parent or any Subsidiary to carry on its business, or the taking by any
governmental, regulatory or other authority of any action in relation to the




70









 












	 	 	Parent or any Subsidiary which could, in the Agent’s opinion, acting
reasonably, have a material adverse effect on all or part of such business.






	 	(b)	 	No Event of Default under paragraph (a) above will occur if the failure
to comply is capable of remedy and is remedied within twenty Business Days of the
earlier of (1) the Agent giving notice to the Parent and (2) the Parent becoming
aware of the failure to comply.






	24.19	 	Material adverse change
	 
	 	 	Any event or circumstance occurs which the Majority Lenders reasonably believe has
or is reasonably likely to have a Material Adverse Effect.
	 
	24.20	 	Acceleration
	 
	24.20.1	 	On and at any time after the occurrence of an Event of Default which is continuing
the Agent may, and shall if so directed by the Majority Lenders, by notice to the Parent:






	 	(a)	 	cancel the Total Commitments at which time they shall immediately be
cancelled;
	 
	 	(b)	 	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, at which time they shall become immediately due and
payable;
	 
	 	(c)	 	declare that all or part of the Loans be payable on demand, at which time
they shall immediately become payable on demand by the Agent on the instructions of
the Majority Lenders;
	 
	 	(d)	 	exercise or direct the Security Agent to exercise any or all of its
rights, remedies, powers or discretions under the Finance Documents.






	25	 	Changes To The Lenders
	 
	25.1	 	Assignments and transfers by the Lenders
	 
	 	 	Subject to this Clause 25, a Lender (Existing Lender) may:






	 	(a)	 	assign any of its rights; or
	 
	 	(b)	 	transfer by novation any of its rights and obligations, under any Finance
Document to another bank or financial institution or to a 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 (New Lender).






	25.2	 	Conditions of assignment or transfer
	 
	25.2.1	 	The consent of the Parent is required for an assignment or transfer by an Existing
Lender unless the assignment or transfer is:






	 	(a)	 	to another Lender or an Affiliate of a Lender;
	 
	 	(b)	 	if the Existing Lender is a fund, to a fund which is a Related Fund of
the Existing Lender; or
	 
	 	(c)	 	made at a time when an Event of Default is continuing.




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	25.2.2	 	The consent of the Parent to an assignment or transfer by an Existing Lender
must not be unreasonably withheld or delayed. The Parent 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 Parent within that time.
	 
	25.2.3	 	The consent of the Parent to an assignment or transfer by an Existing Lender must not be
withheld solely because the assignment or transfer may result in an increase to the Mandatory
Cost.
	 
	25.2.4	 	An assignment will only be effective on:






	 	(a)	 	receipt by the Agent (whether in the Assignment Agreement or otherwise)
of written confirmation from the New Lender (in form and substance satisfactory to
the Agent) that the New Lender will assume the same obligations to the other Finance
Parties and the other Secured Parties as it would have been under if it was an
Original Lender; and
	 
	 	(b)	 	the performance by the 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 Agent shall promptly notify
to the Existing Lender and the New Lender.






	25.2.5	 	A transfer will only be effective if the procedure set out in Clause 25.5 (Procedure for
transfer) is complied with.
	 
	25.2.6	 	If:






	 	(a)	 	a Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office; and
	 
	 	(b)	 	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 15.1 (Increased costs),
	 
	 	then (unless the assignment, transfer or charge has been made in mitigation in
accordance with Clause 17 (Mitigation by the Lenders)) 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.






	25.2.7	 	Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement,
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 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.
	 
	25.3	 	Assignment or transfer fee
	 
	 	 	Unless the Agent otherwise agrees and excluding an assignment or transfer:






	 	(a)	 	to an Affiliate of a Lender;
	 
	 	(b)	 	to a Related Fund; or
	 
	 	(c)	 	made in connection with primary syndication of the Facility,




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	 	the New Lender shall, on the date upon which an assignment or transfer takes
effect, pay to the Agent (for its own account) a fee of £1,000.






	25.4	 	Limitation of responsibility of Existing Lenders
	 
	25.4.1	 	Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a New Lender for:






	 	(a)	 	the legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents, the Transaction Security or any other documents;
	 
	 	(b)	 	the financial condition of any Obligor;
	 
	 	(c)	 	the performance and observance by any Obligor or any other member of the
Group of its obligations under the Finance Documents or any other
documents; or
	 
	 	(d)	 	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.






	25.4.2	 	Each New Lender confirms to the Existing Lender, the other Finance Parties and the Secured
Parties that it:






	 	(a)	 	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 or any
other Finance Party in connection with any Finance Document or the Transaction
Security; and
	 
	 	(b)	 	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.






	25.4.3	 	Nothing in any Finance Document obliges an Existing Lender to:






	 	(a)	 	accept a re-transfer or reassignment from a New Lender of any of the
rights and obligations assigned or transferred under this Clause 25; or
	 
	 	(b)	 	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.






	25.5	 	Procedure for transfer
	 
	25.5.1	 	Subject to the conditions set out in Clause 25.2 (Conditions of assignment or
transfer) a transfer is effected in accordance with Clause 25.5.3 below when the Agent
executes an otherwise duly completed Transfer Certificate delivered to it by the Existing
Lender and the New Lender. The Agent shall, subject to Clause 24.5.2 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.
	 
	25.5.2	 	The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the
Existing Lender and the New Lender upon its completion of all “know your




73









 












	 	 	customer” or other checks relating to any person that it is required to carry out in
relation to the transfer to such New Lender.
	 
	25.5.3	 	On the Transfer Date:






	 	(a)	 	to the extent that in the Transfer Certificate the Existing Lender seeks
to transfer by novation its rights, benefits and obligations under the Finance
Documents and in respect of the Transaction Security each of the Obligors and the
Existing Lender shall be released from further obligations towards one another under
the Finance Documents and in respect of the Transaction Security and their
respective rights against one another under the Finance Documents and in respect of
the Transaction Security shall be cancelled (being the Discharged Rights and
Obligations);
	 
	 	(b)	 	each of the Obligors and the New Lender shall assume obligations towards
one another and/or acquire rights and benefits against one another which differ from
the Discharged Rights and Obligations only insofar as that Obligor or other member
of the Group and the New Lender have assumed and/or acquired the same in place of
that Obligor and the Existing Lender;
	 
	 	(c)	 	the Agent, the Arrangers, the Security Agent, the New Lender and the
other Lenders shall acquire the same rights and assume the same obligations between
themselves and in respect of the Transaction Security 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
the Agent, the Arrangers, the Security Agent and the Existing Lender shall each be
released from further obligations to each other under the Finance Documents; and
	 
	 	(d)	 	the New Lender shall become a Party as a Lender.






	25.6	 	Procedure for assignment
	 
	25.6.1	 	Subject to the conditions set out in Clause 25.2 (Conditions of assignment or transfer) an
assignment may be effected in accordance with Clause 25.6.3 below when the Agent executes an
otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the
New Lender. The Agent shall, subject to Clause 25.6.2 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.
	 
	25.6.2	 	The Agent shall only be obliged to execute an Assignment Agreement delivered to it by the
Existing Lender and the New Lender upon its completion of all “know your customer” or other
checks relating to any person that it is required to carry out in relation to the assignment
to such New Lender.
	 
	25.6.3	 	On the Transfer Date:






	 	(a)	 	the Existing Lender will assign absolutely to the New Lender its rights
under the Finance Documents and in respect of the Transaction Security expressed to
be the subject of the assignment in the Assignment Agreement;
	 
	 	(b)	 	the Existing Lender will be released from the obligations
(Relevant Obligations) expressed to be the subject of the release in the Assignment
Agreement (and any corresponding obligations by which it is bound in respect of
the Transaction Security); and




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	 	(c)	 	the New Lender shall become a Party as a Lender and will be bound by
obligations equivalent to the Relevant Obligations.






	25.6.4	 	Lenders may utilise procedures other than those set out in this Clause 25 to assign their
rights under the Finance Documents (but not, without the consent of the relevant Obligor or
unless in accordance with Clause 25.5 (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 25.2 (Conditions of assignment or transfer).
	 
	25.7	 	Copy of Transfer Certificate or Assignment Agreement to Parent
	 
	 	 	The Agent shall, as soon as reasonably practicable after it has executed a Transfer
Certificate or an Assignment Agreement, send to the Parent a copy of that Transfer
Certificate or Assignment Agreement.
	 
	25.8	 	Security Interests over Lenders’ rights
	 
	25.8.1	 	In addition to the other rights provided to Lenders under this Clause 25, 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)	 	in the case of any Lender which is a fund, 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,






	25.8.2	 	except that no such charge, assignment or Security shall:






	 	(a)	 	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
	 
	 	(b)	 	require any payments to be made by an Obligor 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.






	25.9	 	Pro Rata Interest Settlement
	 
	 	 	If the 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 25.5 (Procedure for transfer) or any assignment pursuant to Clause
25.6 (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):






	 	(a)	 	any interest or fees in respect of the relevant participation which are
expressed to accrue by reference to the lapse of time shall continue to accrue in
favour of the Existing Lender up to but including the Transfer Date (Accrued
Amounts) and shall become due and payable to the Existing Lender (without further
interest accruing on them) until the last day of the current Interest Period (or,
if the Interest Period is longer than six Months, on




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	 	 	 	the next of the dates which falls at six Monthly intervals after the first day of
that Interest Period); and
	 
	 	(b)	 	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:






	 	(i)	 	when the Accrued Amounts become payable, those
Accrued Amounts will be payable for the account of the Existing Lender,
and
	 
	 	(ii)	 	the amount payable to the New Lender on that
date will be the amount which would, but for the application of this
Clause 25.10, have been payable to it on that date, but after deduction
of the Accrued Amounts.






	25.10	 	Prohibition on Debt Purchase Transactions
	 
	 	 	The Parent shall not, and shall procure that each other member of the Group shall not,
enter into any Debt Purchase Transaction or beneficially own all or any part of the
share capital of a company that is a Lender or a party to a Debt Purchase Transaction of
the type referred to in paragraphs (b) or (c) of the definition of Debt Purchase
Transaction.
	 
	26	 	Changes To The Obligors
	 
	26.1	 	Assignment and transfers by Obligors
	 
	 	 	No Obligor or any other member of the Group may assign any of its rights or transfer any
of its rights or obligations under the Finance Documents.
	 
	26.2	 	Additional Borrowers
	 
	26.2.1	 	Subject to compliance with the provisions of Clause 21.10 (“Know your customer” checks),
the Parent may request that any of its wholly owned Subsidiaries becomes an Additional
Borrower. That Subsidiary shall become an Additional Borrower if:






	 	(a)	 	it is incorporated in Bermuda, the United States of America or the United
Kingdom or any other jurisdiction approved by the Lenders and all the Lenders
approve the addition of that Subsidiary;
	 
	 	(b)	 	the Parent and that Subsidiary deliver to the Agent a duly completed and
executed Accession Letter;
	 
	 	(c)	 	the Subsidiary is (or becomes) a Guarantor prior to becoming a Borrower;
	 
	 	(d)	 	the Parent confirms that no Default is continuing or would occur as a
result of that Subsidiary becoming an Additional Borrower; and
	 
	 	(e)	 	the Agent has received all of the documents and other evidence listed in
Part 2 of Schedule 2 (Conditions precedent) in relation to that Additional Borrower,
each in form and substance satisfactory to the Agent.






	26.2.2	 	The Agent shall notify the Parent and the Lenders promptly upon being satisfied that it has
received (in form and substance satisfactory to it) all the documents and other evidence
listed in Part 2 of Schedule 2 (Conditions precedent).






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	26.3	 	Additional Guarantors
	 
	26.3.1	 	Subject to compliance with the provisions of Clause 21.10 (“Know your customer”
checks), the Parent may request that any of its wholly owned Subsidiaries become an Additional
Guarantor.
	 
	26.3.2	 	A member of the Group shall become an Additional Guarantor if:






	 	(a)	 	the Parent and the proposed Obligor deliver to the Agent a duly completed and executed
Accession Letter; and
	 
	 	(b)	 	the Agent has received all of the documents and other evidence listed in Part 2 of
Schedule 2 (Conditions precedent) in relation to that Additional Guarantor, each in form and
substance satisfactory to the Agent.






	26.3.3	 	The Agent shall notify the Parent and the Lenders
promptly upon being satisfied that it has received (in form and substance satisfactory to it) all
the documents and other evidence listed in Part 2 of Schedule 2 (Conditions precedent).
	 
	26.4	 	Repetition of Representations
	 
	 	 	Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that the
representations and warranties referred to in Clause 20.32 (Times when representations made) are
true and correct in relation to it as at the date of delivery as if made by reference to the facts
and circumstances then existing.
	 
	26.5	 	Resignation and release of security on disposal
	 
	26.5.1	 	In this clause, Third Party Disposal means the disposal of an Obligor to a person which is
not a member of the Group where that disposal is permitted under Clause
23.12 (Disposals) or made with the approval of the Lenders (and the Parent has confirmed this is
the case).
	 
	26.5.2	 	If a Borrower or a Guarantor is or is proposed to be the subject of a Third Party
Disposal then:






	 	(a)	 	the Parent shall confirm that no Default is continuing or would result from the Third
Party Disposal;
	 
	 	(b)	 	if a Borrower is being disposed of then prior to such Third Party Disposal the Parent shall
ensure that the Borrower is under no actual or contingent obligations as a Borrower under any
Finance Documents;
	 
	 	(c)	 	where that Borrower or Guarantor created Transaction Security over any of its assets or
business in favour of the Security Agent, or Transaction Security in favour of the Security Agent
was created over the shares (or equivalent) of that Borrower or Guarantor, the Security Agent may,
at the cost and request of the Parent, release those assets, business or shares (or equivalent) and
issue certificates of non-crystallisation;





	 
	 	(d)	 	the resignation of that Borrower or Guarantor and
related release of Transaction Security referred to in Clause 26.5.2(a) above shall not become
effective until all Disposal Proceeds resulting from that Third Party Disposal have been
irrevocably paid to the Agent in accordance with Clause 8 (Mandatory Prepayment); and
	 
	 	(e)	 	if the disposal of that Borrower or Guarantor is not made, the release of Transaction Security
referred to in Clause 26.5.2(a) above shall have no effect and the obligations of that Borrower or
Guarantor and the Transaction




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	 	 	 	Security created or intended to be created by or over that Borrower or Guarantor shall continue in
full force and effect.






	26.6	 	Additional Material Companies
	 
	26.6.1	 	Subject to compliance with the provisions of Clause 21.10 (“Know your customer” checks), the
Parent may request that any of its Subsidiaries become a Material Company.
	 
	26.6.2	 	The Parent shall procure that the immediate Holding Company of any entity that it wishes to
become a Material Company shall (if it is not already an Obligor) become an Additional Guarantor in
accordance with Clause 26.2 (Additional Guarantors) and grant such Security over its shares in the
proposed Material Company as the Agent may require.
	 
	26.6.3	 	A member of the Group shall become a Material Company if:






	 	(a)	 	the Agent has received all of the documents and other evidence that it may require the Parent
to provide at is absolute discretion, and each is in form and substance satisfactory to the Agent;
and
	 
	 	(b)	 	the Holding Company of the proposed Material Company is an Obligor and it has granted such
Security over its shares in the proposed Material Company as the Agent may require (in form and
substance satisfactory to the Agent).






	26.6.4	 	The Agent shall notify the Parent and the Lenders promptly upon being satisfied that it has
received (in form and substance satisfactory to it in its absolute discretion) all the documents
and other evidence required by it.
	 
	27	 	Role Of The Agent, The Arrangers, The Security Agent And Others
	 
	27.1	 	Appointment of the Agent
	 
	27.1.1	 	The Arrangers and each of the Lenders appoints the Agent to act as its agent under and in
connection with the Finance Documents.
	 
	27.1.2	 	The Arrangers and each of the Lenders authorises the Agent to exercise the rights, powers,
authorities and discretions specifically given to the Agent under or in connection with the Finance
Documents together with any other incidental rights, powers, authorities and discretions.
	 
	27.2	 	Duties of the Agent
	 
	27.2.1	 	The Agent shall promptly forward to a Party the original or a copy of any document which is
delivered to the Agent for that Party by any other Party excluding, for the avoidance of doubt, any
Fee Letter.
	 
	27.2.2	 	Except where a Finance Document specifically provides otherwise, the Agent is not obliged to
review or check the adequacy, accuracy or completeness of any document it forwards to another
Party.
	 
	27.2.3	 	If the Agent receives notice from a Party referring to this Agreement, describing a Default
and stating that the circumstance described is a Default, it shall promptly notify the other
Finance Parties. The Agent is not obliged to monitor or enquire whether a Default has occurred.
	 
	27.2.4	 	If the Agent is aware of the non-payment of any principal, interest, commitment fee or other
fee payable to a Finance Party (other than the Agent, the Arrangers or the




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	 	 	Security Agent) under this Agreement it shall promptly notify the other Finance Parties.
	 
	27.2.5	 	The Agent’s duties under the Finance Documents are solely mechanical and administrative in
nature.
	 
	27.3	 	Role of the Arrangers 

Except as specifically provided in the Finance Documents, the Arrangers
have no obligations of any kind to any other Party under or in connection with any Finance
Document.
	 
	27.4	 	No fiduciary duties
	 
	27.4.1	 	Nothing in this Agreement constitutes the Agent and/or the Arrangers as a trustee or
fiduciary of any other person.
	 
	27.4.2	 	None of the Agent, the Security Agent or the Arrangers shall be bound to account to any
Lender for any sum or the profit element of any sum received by it for its own account.
	 
	27.5	 	Business with the Group
	 
	 	 	The Agent, the Security Agent and the Arrangers may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any Obligor or any member of the
Group.
	 
	27.6	 	Rights and discretions
	 
	27.6.1	 	The Agent may rely on:






	 	(a)	 	any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
	 
	 	(b)	 	any statement made by a director, authorised signatory or employee of any person regarding any
matters which may reasonably be assumed to be within his knowledge or within his power to verify.






	27.6.2	 	The Agent may assume (unless it has received notice to the contrary in its capacity as agent
for the Lenders) that:






	 	(a)	 	no Default has occurred (unless it has actual knowledge of a Default arising under Clause 24.1
(Non-payment));
	 
	 	(b)	 	any right, power, authority or discretion vested in any Party or the Majority Lenders has not
been exercised; and
	 
	 	(c)	 	any notice or request made by the Parent (other than a Utilisation Request) is made on behalf
of and with the consent and knowledge of all the Obligors.






	27.6.3	 	The Agent may engage, pay for and rely on the advice or services of any lawyers,
accountants, actuaries or other experts.
	 
	27.6.4	 	The Agent may act in relation to the Finance
Documents through its personnel and agents.
	 
	27.6.5	 	The Agent may disclose to any other Party any information it reasonably believes it has
received as agent under the Finance Documents.




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	27.6.6	 	The Agent may execute on behalf of the Finance Parties any document expressed by any Finance
Document to be executed by the Agent on their behalf.
	 
	27.6.7	 	Notwithstanding any other provision of any Finance Document to the contrary, none of the
Agent or the Arrangers 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.
	 
	27.7	 	Majority Lenders’ instructions
	 
	27.7.1	 	Unless a contrary indication appears in a Finance Document, the Agent shall (i) exercise any
right, power, authority or discretion vested in it as Agent in accordance with any instructions
given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from
exercising any right, power, authority or discretion vested in it as 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 Majority Lenders.
	 
	27.7.2	 	Unless a contrary indication appears in a Finance Document, any instructions given by the
Majority Lenders will be binding on all the Finance Parties other than the Security Agent.
	 
	27.7.3	 	Any Lender may by notice to the Agent divide its Loans or Commitments into separate amounts
to reflect sub-participation or similar transactions and may require the Agent to count such
separate amounts individually in calculating the composition of the Majority Lenders.
	 
	27.7.4	 	The Agent may refrain from acting in accordance with the instructions of the Majority
Lenders (or, if appropriate, the Lenders) until it has received such security as it may require for
any cost, loss or liability (together with any associated VAT) which it may incur in complying with
the instructions.
	 
	27.7.5	 	In the absence of instructions from the Majority Lenders, (or, if appropriate, the Lenders),
the Agent may act (or refrain from taking action) as it considers to be in the best interest of the
Lenders.
	 
	27.7.6	 	The Agent is not authorised to act on behalf of a Lender (without first obtaining that
Lender’s consent) in any legal or arbitration proceedings relating to any Finance Document. This
Clause 27.7 shall not apply to any legal or arbitration proceeding relating to the perfection,
preservation or protection of rights under the Transaction Security Documents or enforcement of the
Transaction Security or Transaction Security Documents.
	 
	27.8	 	Responsibility for documentation
	 
	 	 	Neither the Agent nor the Arrangers:






	 	(a)	 	is responsible for the adequacy, accuracy and/or completeness of any information (whether oral
or written) supplied by the Agent, an Arranger, an Obligor or any other person given in or in
connection with any Finance Document or the transactions contemplated in the Finance Documents; or
	 
	 	(b)	 	is responsible for the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document or the Transaction Security or any other agreement, arrangement or document
entered into, made or executed in anticipation of or in connection with any Finance Document or the
Transaction Security.




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	27.9	 	Exclusion of liability
	 
	27.9.1	 	Without limiting Clause 27.9.2 below and without prejudice to the provisions of Clause 30.14
(Disruption to the Payment Systems etc.), the Agent will not be liable for any action taken by it
under or in connection with any Finance Document or the Transaction Security, unless directly
caused by its gross negligence or wilful misconduct.
	 
	27.9.2	 	No Party (other than the Agent) may take any proceedings against any officer, employee or
agent of the Agent in respect of any claim it might have against the Agent, or in respect of any
act or omission of any kind by that officer, employee or agent in relation to any Finance Document
and any officer, employee or agent of the Agent, may rely on this Clause subject to Clause 1.8
(Third party rights) and the provisions of the Third Parties Act.
	 
	27.9.3	 	The Agent will not 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 the Agent if the Agent
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 the Agent for that
purpose.
	 
	27.9.4	 	Nothing in this Agreement shall oblige the Agent or the Arrangers to carry out any “know
your customer” or other checks in relation to any person on behalf of any Lender and each Lender
confirms to the Agent and the Arrangers 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
the Agent or the Arrangers.
	 
	27.10	 	Lenders’ indemnity to the 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 Agent, within three Business Days of
demand, against any cost, loss or liability (including for negligence or any other category of
liability whatsoever) incurred by the Agent (otherwise than by reason of the Agent’s gross
negligence or wilful misconduct) (or in the case of any costs, loss or liability pursuant to Clause
30.14 (Disruption to Payment Systems etc.) notwithstanding the Agent’s negligence, gross negligence
or any other category of liability whatsoever but not including any claim based on the fraud of the
Agent) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an
Obligor pursuant to a Finance Document).
	 
	27.11	 	Resignation of the Agent
	 
	27.11.1	 	The Agent may resign and appoint one of its Affiliates acting through an office in the
United Kingdom as successor by giving notice to the Lenders and the Parent.
	 
	27.11.2	 	  Alternatively
the Agent may resign by giving notice to the Lenders and the Parent, in which case the Majority
Lenders (after consultation with the Parent) may appoint a successor Agent.
	 
	27.11.3	 	If the Majority Lenders have not appointed a successor Agent in accordance with Clause
27.11.2 above within 30 days after notice of resignation was given, the Agent (after consultation
with the Parent) may appoint a successor Agent (acting through an office in the United Kingdom).
	 
	27.11.4	 	The retiring Agent shall, at its own cost, make available to the successor Agent such
documents and records and provide such assistance as the successor Agent




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	 	 	may reasonably request for the purposes of performing its functions as Agent under the Finance
Documents.
	 
	27.11.5	 	The Agent’s resignation notice shall only take effect upon the appointment of a successor.
	 
	27.11.6	 	Upon the appointment of a successor, the retiring Agent shall be discharged from any
further obligation in respect of the Finance Documents but shall remain entitled to the benefit of
this Clause 27. 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.
	 
	27.11.7	 	After consultation with the Parent, the Majority Lenders may, by notice to the Agent,
require it to resign in accordance with Clause 27.11.2 above. In this event, the Agent shall resign
in accordance with Clause 27.11.2 above.
	 
	27.12	 	Confidentiality
	 
	27.12.1	 	In acting as agent for the Finance Parties, the Agent 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.
	 
	27.12.2	 	If information is received by another division or department of the Agent, it may be
treated as confidential to that division or department and the Agent shall not be deemed to have
notice of it.
	 
	27.12.3	 	Notwithstanding any other provision of any Finance Document to the contrary, neither the
Agent nor the Arrangers are obliged to disclose to any other person (i) any confidential
information, or (ii) any other information if the disclosure would or might in its reasonable
opinion constitute a breach of any law or a breach of a fiduciary duty.
	 
	27.13	 	Relationship with the Lenders
	 
	27.13.1	 	The Agent may treat each Lender as a Lender, entitled to payments under this Agreement and
acting through its Facility Office 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.
	 
	27.13.2	 	Each Lender shall supply the Agent with any information required by the Agent in order to
calculate the Mandatory Cost in accordance with Schedule 4 (Mandatory Cost Formula).
	 
	27.13.3	 	Each Lender shall supply the Agent with any information that the Security Agent may
reasonably specify (through the Agent) as being necessary or desirable to enable the Security Agent
to perform its functions as Security Agent. Each Lender shall deal with the Security Agent
exclusively through the Agent and shall not deal directly with the Security Agent.
	 
	27.14	 	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 the Agent and the Arrangers 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:




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	 	(a)	 	the financial condition, status and nature of each Obligor and each member of the Group;
	 
	 	(b)	 	the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and
the Transaction Security 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 Transaction
Security;
	 
	 	(c)	 	whether that Secured Party 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
Transaction Security, 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;
	 
	 	(d)	 	the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party
or by any other person under or in connection with any Finance Document, 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; and
	 
	 	(e)	 	the right or title of any person in or to, or the value or sufficiency of any part of the
Charged Property, the priority of any of the Transaction Security or the existence of any Security
affecting the Charged Property.






	27.15	 	Reference Banks
	 
	27.15.1	 	If a Lender is a Reference Bank (or an Affiliate of a Reference Bank) but later ceases to
be a Lender, the Agent shall (in consultation with the Parent) appoint another Lender or another
Affiliate of a Lender to replace that Reference Bank.
	 
	27.15.2	 	If a Reference Bank which was not a Lender subsequently becomes a Lender, the Agent may (in
consultation with the Parent) appoint that Lender to replace any Reference Bank which is not then
either a Lender or an Affiliate of a Lender.
	 
	27.16	 	Deduction from amounts payable by the Agent 

If any Party owes an amount to the Agent under
the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent 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.
	 
	27.17	 	Reliance and engagement letters 

Each Finance Party and Secured Party confirms that each
Arranger and the 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 or Agent) the terms of any
reliance letter or engagement letters relating to the Report or letters provided by accountants or
actuaries in connection with the Finance Documents or the transactions contemplated in the Finance
Documents (including any net asset letter in connection with the financial assistance procedures)
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.




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	27.18	 	Appointment of Security Agent
	 
	27.18.1	 	Each other Finance Party irrevocably appoints the Security Agent as its agent and trustee
on the terms set out in Schedule 11 (Security Agent).
	 
	27.18.2	 	Each Obligor and each other Finance Party agrees to the terms set out in Schedule
11 (Security Agent). In the event of any conflict between the terms of Schedule 11 (Security Agent)
and any other Finance Document, the terms of Schedule 11 (Security Agent) shall prevail.
	 
	27.19	 	Release of Security
	 
	27.19.1	 	The Security Agent may at its sole discretion and without reference to any other Finance
Party take such action as it deems necessary or advisable to release any assets from the Security
constituted by the Transaction Security Documents to the extent that their disposal or release is:






	 	(a)	 	permitted or required by the terms of this Agreement including pursuant to any instructions
given to it in accordance with Clause 27.20 (Instructions); or
	 
	 	(b)	 	permitted or required by the original form of any other Finance Document and will not result or
could not reasonably be expected to result in any breach of the terms of this Agreement.






	27.19.2	 	If:






	 	(a)	 	all of the shares in the capital of any member of the Group are to be disposed of, which would
result in any Obligor ceasing to be a member of the Group; or
	 
	 	(b)	 	any asset which is the subject of a Transaction Security Document is to be disposed of to a
person outside (and which will remain outside) the Group,






	 	 	 	and in any such case:






	 	(i)	 	the Majority Lenders agree to such disposal; or
	 
	 	(ii)	 	the Security Agent has received instructions from the relevant Finance Parties that comply
with Clause 27.20 (Instructions) instructing it to release the relevant Security and/or guarantees
over such asset; or
	 
	 	(iii)	 	the disposal is permitted by the terms of the relevant Finance Document and will not result
or could not reasonably be expected to result in any breach of any of the terms of this Agreement;
or
	 
	 	(iv)	 	the disposal is being made at the request of the Security Agent in circumstances where any
Security created by the Transaction Security Documents has become enforceable; or
	 
	 	(v)	 	the disposal is being effected by enforcement of a Transaction Security Document,






	 	 	then, in the
case of a disposal contemplated by paragraph (a) above, the Security provided by that Obligor over
its assets under the Transaction Security Documents and any related guarantees given by, or in
respect of, such Obligor will be released and in the case of a disposal contemplated by paragraph
(b) above those assets will be released from such Security, in each case at the expense of the
relevant Obligor.




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	27.19.3	 	The Security Agent is authorised by each other Finance Party to execute (on behalf of
itself and each such Finance Party) all releases of any Security or any guarantee resulting from
any disposal contemplated in Clauses 26.19.1 and 26.19.2 above, without the need for any further
referral to, or authority from, any other Party, including any formal release of any asset which
the Security Agent in its absolute discretion considers necessary or desirable in connection with
that disposal.
	 
	27.20	 	Instructions:
	 
	27.20.1	 	The Security Agent shall act in accordance with:






	 	(a)	 	the terms of this Agreement; or
	 
	 	(b)	 	instructions received from, or on behalf of, the Majority Lenders, or as the case may be,
Lenders.






	27.20.2	 	Any release of any Security constituted by the Transaction Security Documents or any
release of any claim arising by virtue of any guarantee given under the Finance Documents, shall
(other than as provided in Clause 27.19 (Release of Security)) require the prior written consent
of, or on behalf of, the Lenders).
	 
	27.20.3	 	The Security Agent will not be liable to any other Finance Party for any act (or omission)
if it acts (or refrains from taking any action) in accordance with the terms of this Agreement even
if such action would otherwise cause a breach of any Finance Document. If there is any conflict
between the provisions of this Agreement and any other Finance Document with regard to
instructions, this Clause 27.20 will prevail.
	 
	27.20.4	 	Any instructions given to the Security Agent in accordance with the terms of this Agreement
will be binding on all other Finance Parties who shall not be entitled to object to anything done
or omitted to be done as a result of such instructions.
	 
	27.20.5	 	In the absence of instructions, the Security Agent may act (or refrain from taking action)
in such manner as it considers to be in the best interests of the Finance Parties but is not
authorised to act on behalf of another Finance Party (without first obtaining their consent) in any
legal or arbitration proceedings relating to any Finance Document.
	 
	27.20.6	 	The Security Agent may refrain from acting in accordance with any instructions until it has
received such Security as it may require for any cost, loss or liability (together with any
associated Tax) which it may incur in complying with the instructions.
	 
	27.20.7	 	The Finance Parties shall not have any independent power to enforce, or have recourse to,
any of the Transaction Security or to exercise any rights or powers arising under the Transaction
Security Documents except through the Security Agent.
	 
	28	 	Conduct Of Business By The Finance Parties
	 
	 	 	No provision of any Finance Document will:






	 	(a)	 	interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in
whatever manner it thinks fit;
	 
	 	(b)	 	oblige any Finance Party to investigate or claim any credit, relief, remission or repayment
available to it or the extent, order and manner of any claim; or




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	 	(c)	 	oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise)
or any computations in respect of Tax.






	29	 	Sharing Among The Finance Parties
	 
	29.1   	 	Payments to Finance Parties
	 
	 	 	If a Finance Party (Recovering Finance Party) receives or recovers any amount from an Obligor other
than in accordance with Clause 29 (Payment mechanics) 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 Agent;
	 
	 	(b)	 	the 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 Agent and distributed in accordance with Clause 30 (Payment mechanics), without taking account
of any Tax which would be imposed on the Agent in relation to the receipt, recovery or
distribution; and
	 
	 	(c)	 	the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to
the Agent an amount (Sharing Payment) equal to such receipt or recovery less any amount which the
Agent determines may be retained by the Recovering Finance Party as its share of any payment to be
made, in accordance with Clause 30.9 (Partial payments).






	29.2	 	Redistribution of payments
	 
	 	 	The 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) in accordance
with Clause 30.9 (Partial payments).
	 
	29.3	 	Recovering Finance Party’s rights
	 
	29.3.1	 	On a distribution by the Agent under Clause 29.2 (Redistribution of payments), the
Recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared
in the redistribution.
	 
	29.3.2	 	If and to the extent that the Recovering Finance Party is not able to rely on its rights
under Clause 29.3.1 above, the relevant Obligor shall be liable to the Recovering Finance Party for
a debt equal to the Sharing Payment which is immediately due and payable.
	 
	29.4	 	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 Finance Party which has received a share of the relevant Sharing Payment pursuant to
Clause 29.2 (Redistribution of payments) shall, upon request of the Agent, pay to the Agent for
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); and




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	 	(b)	 	that Recovering Finance Party’s rights of subrogation in respect of any reimbursement shall be
cancelled and the relevant Obligor will be liable to the reimbursing Finance Party for the amount
so reimbursed.






	29.5	 	Exceptions
	 
	29.5.1	 	This Clause 29 shall not apply to the extent that the Recovering Finance Party would not,
after making any payment pursuant to this Clause, have a valid and enforceable claim against the
relevant Obligor.
	 
	29.5.2	 	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:






	 	(a)	 	it notified the other Finance Party of the legal or arbitration proceedings; and
	 
	 	(b)	 	the other Finance Party had an opportunity to participate in those legal or arbitration
proceedings but did not do so as soon as reasonably practicable having received notice and did not
take separate legal or arbitration proceedings.






	30	 	Payment Mechanics
	 
	30.1	 	Payments to the Agent
	 
	30.1.1	 	On each date on which an Obligor or a Lender is required to make a payment under a Finance
Document, that Obligor or Lender shall (and the Parent shall ensure that such Obligor will) make
the same available to the 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 Agent as being customary at
the time for settlement of transactions in the relevant currency in the place of payment.
	 
	30.1.2	 	Payment shall be made to such account with such bank as the Agent specifies.
	 
	30.2	 	Distributions by the Agent
	 
	 	 	Each payment received by the Agent under the Finance Documents for another Party shall, subject to
Clause 30.3 (Distributions to an Obligor) and Clause 30.4 (Clawback) be made available by the 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 Agent by not less than five Business Days’ notice.
	 
	30.3	 	Distributions to an Obligor
	 
	 	 	The Agent may (with the consent of the Obligor or in accordance with Clause 31 (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.
	 
	30.4	 	Clawback
	 
	30.4.1	 	Where a sum is to be paid to the Agent under the Finance Documents for another Party, the
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.






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	30.4.2	 	If the Agent pays an amount to another Party and it proves to be the case that the
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 the Agent shall on demand refund the
same to the Agent together with interest on that amount from the date of payment to the date
of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
	 
	30.5	 	Proceeds of enforcement
	 
	 	 	Subject to the payment of any claim ranking in priority as a matter of law, the
proceeds of enforcement of the Security constituted by the Transaction Security
Documents shall be paid to the Security Agent and those proceeds (together with
all other amounts paid to the Security Agent in accordance with the terms of this
Agreement or any other Finance Document) shall be applied in the following order:






	 	(a)	 	First, in satisfaction of all costs, charges, expenses (including legal
expenses) and liabilities properly incurred by the Security Agent (in its
capacity as Security Agent) or any Insolvency Representative appointed
under the Transaction Security Documents or their attorneys or agents and of the
remuneration of such Insolvency Representative (and all interest on such sums as
provided in the Finance Documents);
	 
	 	(b)	 	Second, in payment of all reasonable costs and expenses (including legal
expenses) properly incurred by or on behalf of any other Finance Party in
connection with such enforcement;
	 
	 	(c)	 	Third, in payment to the Agent for application in or towards the discharge of
the Loans, interest and other amounts outstanding under the Finance
Documents in accordance with the order set out in paragraphs (a) to (d) of Clause
30.9 (Partial payments); and
	 
	 	(d)	 	Fourth, any surplus to such persons who may be entitled to them.






	30.6	 	Waterfall
	 
	 	 	No such proceeds or amounts shall be applied in payment of any amounts
specified in any of the paragraphs in Clause 30.5 (Proceeds of Enforcement) until all
amounts specified in any earlier paragraph have been paid in full.
	 
	30.7	 	Good discharge
	 
	 	 	An acknowledgement of receipt signed by the relevant person to whom payments are to be made
under Clause 30.5 (Proceeds of Enforcement) shall be a good discharge of the Security
Agent.
	 
	30.8	 	Sums received by the Obligors
	 
	 	 	If an Obligor receives any sum which, pursuant to any of the Finance Documents, should have
been paid to the Security Agent, that sum shall promptly be paid to the Security Agent for
application in accordance with this Clause 30.
	 
	30.9	 	Partial payments
	 
	30.9.1	 	If the Agent receives a payment for application against amounts due in respect of any
Finance Documents that is insufficient to discharge all the amounts then due and payable by an
Obligor under those Finance Documents, the Agent shall apply that payment towards the
obligations of that Obligor under those Finance
Documents in the following order:




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	 	(a)	 	first, in or towards payment pro rata of any unpaid fees, costs and expenses of the
Agent or the Security Agent under the Finance Documents;
	 
	 	(b)	 	secondly, in or towards payment pro rata of any accrued interest, fee or
commission due but unpaid under this Agreement;
	 
	 	(c)	 	thirdly, in or towards payment pro rata of any principal amount due but
unpaid under this Agreement; and
	 
	 	(d)	 	fourthly, in or towards payment pro rata of any other sum due but unpaid
under the Finance Documents.






	30.9.2	 	The Agent shall, if so directed by the Majority Lenders, vary the order set out in
paragraphs (a) to (d) above.
	 
	30.9.3	 	Clauses 30.9.1 and 30.9.2 above will override any appropriation made by an
Obligor.
	 
	30.10	 	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.
	 
	30.11	 	Business Days
	 
	30.11.1	 	Any payment 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).
	 
	30.11.2	 	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.
	 
	30.12	 	Currency of account
	 
	30.12.1	 	Subject to Clauses 30.12.2 to 30.12.5 below, the Base Currency is the currency of account
and payment for any sum due from an Obligor under any Finance Document.
	 
	30.12.2	 	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 on its due date.
	 
	30.12.3	 	Each payment of interest shall be made in the currency in which the sum in respect of which
the interest is payable was denominated when that interest accrued.
	 
	30.12.4	 	Each payment in respect of costs, expenses or Taxes shall be made in the currency in which
the costs, expenses or Taxes are incurred.
	 
	30.12.5	 	Any amount expressed to be payable in a currency other than the Base Currency shall be paid
in that other currency.
	 
	30.13	 	Change of currency
	 
	30.13.1	 	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:




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	 	(a)	 	any reference in the Finance Documents to, and any obligations arising
under the Finance Documents in, the currency of that country shall be
translated into, or paid in, the currency or currency unit of that country
designated by the Agent (after consultation with the Parent); and
	 
	 	(b)	 	any translation from one currency or currency unit to another shall be at the
official rate of exchange recognised by the central bank for the conversion of that
currency or currency unit into the other, rounded up or down by the Agent (acting
reasonably).






	30.13.2	 	If a change in any currency of a country occurs, this Agreement will, to the extent the
Agent (acting reasonably and after consultation with the Parent) specifies to be necessary, be
amended to comply with any generally accepted conventions and market practice in the London
interbank market and otherwise to reflect the change in currency.
	 
	30.14	 	Disruption to Payment Systems etc.
	 
	 	 	If either the Agent determines (in its discretion) that a Disruption Event has
occurred or the Agent is notified by the Parent that a Disruption Event has
occurred:






	 	(a)	 	the Agent may, and shall if requested to do so by the Parent, consult with
the Parent with a view to agreeing with the Parent such changes to the operation or
administration of the Facility as the Agent may deem necessary in the circumstances;
	 
	 	(b)	 	the Agent shall not be obliged to consult with the Parent in relation to any
changes mentioned in paragraph (a) 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 Agent may consult with the Finance Parties in relation to any changes
mentioned in paragraph (a) 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 Agent and the Parent shall (whether or
not it is finally determined that a Disruption Event has occurred) be binding upon the
Parties as an amendment to (or, as the case may be, waiver of) the terms of the
Finance Documents notwithstanding the provisions of Clause 36 (Amendments and
Waivers);
	 
	 	(e)	 	the Agent shall not be liable for any damages, costs or losses 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 Agent) arising as a result of its taking, or failing to take, any actions
pursuant to or in connection with this Clause 30.14; and
	 
	 	(f)	 	the Agent shall notify the Finance Parties of all changes agreed pursuant to
paragraph (d) above.






	31	 	Set-Off
	 
	 	 	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 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




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		 	obligation at a market rate of exchange in its usual course of business for the
purpose of the set-off. No security interest is created by this Clause 31.
	 
	32	 	Notices
	 
	32.1	 	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 fax or
letter.
	 
	32.2	 	Addresses
	 
	32.2.1	 	The address and fax number (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 Parent, that identified with its name below;
	 
	 	(b)	 	in the case of each Lender or any other Obligor, that notified in writing to
the Agent on or prior to the date on which it becomes a Party; and
	 
	 	(c)	 	in the case of the Agent or the Security Agent, that identified with its name
below,



	 	or any substitute address, fax number or department or officer as the Party may
notify to the Agent (or the Agent may notify to the other Parties, if a change is made
by the Agent) by not less than five Business Days’ notice.






	32.3	 	Delivery
	 
	32.3.1	 	Any communication or document made or delivered by one person to another
under or in connection with the Finance Documents will only be effective:






	 	(a)	 	if by way of fax, when received in legible form; or
	 
	 	(b)	 	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 32.2 (Addresses), if
addressed to that department or officer.
	 
	32.3.2	 	Any communication or document to be made or delivered to the Agent or the
Security Agent will be effective only when actually received by the Agent or
Security Agent and then only if it is expressly marked for the attention of the
department or officer identified with the Agent’s or Security Agent’s signature below (or
any substitute department or officer as the Agent or Security Agent shall specify for this
purpose).
	 
	32.3.3	 	All notices from or to an Obligor shall be sent through the Agent.
	 
	32.3.4	 	Any communication or document made or delivered to the Parent
in accordance with this Clause 32 will be deemed to have been made or delivered to each of the Obligors
or any other member of the Group party to a Finance Document.




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	32.4	 	Notification of address and fax number
	 
	 	 	Promptly upon receipt of notification of an address and fax number or change of
address or fax number pursuant to Clause 32.2 (Addresses) or changing its own
address or fax number, the Agent shall notify the other Parties.
	 
	32.5	 	Electronic communication
	 
	32.5.1	 	Any communication to be made between the Agent or the Security Agent and
another Finance Party under or in connection with the Finance Documents may be made by
electronic mail or other electronic means, if the Agent, the Security Agent and the
relevant Finance Party:






	 	(a)	 	agree that, unless and until notified to the contrary, this is to be an
accepted form of communication;
	 
	 	(b)	 	notify each other in writing of their electronic mail address and/or any
other information required to enable the sending and receipt of information by that
means; and
	 
	 	(c)	 	notify each other of any change to their address or any other such
information supplied by them.






	32.5.2	 	Any electronic communication made between the Agent or the Security Agent and a Finance
Party will be effective only when actually received in readable form and in the case of any
electronic communication made by a Finance Party to the Agent or the Security Agent only if it
is addressed in such a manner as the Agent or Security Agent shall specify for this purpose.
	 
	32.6	 	Use of websites
	 
	32.6.1	 	The Parent may satisfy its obligation under this Agreement to deliver any
information in relation to those Lenders (Website Lenders) who accept this
method of communication by posting this information onto an electronic website
designated by the Parent and the Agent (Designated Website) if:






	 	(a)	 	the Agent expressly agrees (after consultation with each of the Lenders) that
it will accept communication of the information by this method;
	 
	 	(b)	 	both the Parent and the Agent are aware of the address of and any relevant
password specifications for the Designated Website; and
	 
	 	(c)	 	the information is in a printable format or otherwise capable of being
downloaded by the relevant Website Lender and is in a format previously
agreed between the Parent and the Agent.






	 	 	If any Lender (Paper Form Lender) does not agree to the delivery of information
electronically then the Agent shall notify the Parent accordingly and the Parent
shall at its own cost supply the information to the Agent (in sufficient copies for
each Paper Form Lender) in paper form. In any event the Parent shall at its own
cost supply the Agent with at least one copy in paper form of any information
required to be provided by it.
	 
	32.6.2	 	The 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 Parent and the Agent.
	 
	32.6.3	 	The Parent shall promptly upon becoming aware of its occurrence notify the Agent if:




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	 	(a)	 	the Designated Website cannot be accessed due to technical failure;
	 
	 	(b)	 	the password specifications for the Designated Website change;
	 
	 	(c)	 	any new information which is required to be provided under this Agreement is
posted onto the Designated Website;
	 
	 	(d)	 	any existing information which has been provided under this Agreement and
posted onto the Designated Website is amended; or
	 
	 	(e)	 	the Parent 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 Parent notifies the Agent under paragraphs (a) to (e) above, all information to be
provided by the Parent under this Agreement after the date of that notice shall be supplied
in paper form unless and until the Agent and each Website Lender is satisfied that the
circumstances giving rise to the notification are no longer continuing.
	 
	32.6.4	 	Any Website Lender may request, through the Agent, one paper copy of any
information required to be provided under this Agreement which is posted onto the
Designated Website. The Parent shall at its own cost comply with any such request within ten Business Days.
	 
	32.7	 	English language
	 
	32.7.1	 	Any notice given under or in connection with any Finance Document must be in
English.
	 
	32.7.2	 	All other documents provided under or in connection with any Finance Document
must be:






	 	(a)	 	in English; or
	 
	 	(b)	 	if not in English, and if so required by the 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.






	33	 	Calculations And Certificates
	 
	33.1	 	Accounts
	 
	 	 	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.
	 
	33.2	 	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.
	 
	33.3	 	Day count convention
	 
	 	 	Any interest, commission or fee accruing under a Finance Document will accrue
from day to day and is calculated 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 London
interbank market differs, in accordance with that market practice.




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	34	 	Partial Invalidity
	 
	 	 	If, at any time, any provision of the Finance Documents 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.
	 
	35	 	Remedies And Waivers
	 
	 	 	No failure to exercise, nor any delay in exercising, on the part of any Finance Party
or Secured Party, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy prevent any further
or other exercise or the exercise of any other right or remedy. The rights and remedies
provided in this Agreement are cumulative and not exclusive of any rights or remedies
provided by law.
	 
	36	 	Amendments And Waivers
	 
	36.1	 	Required consents
	 
	36.1.1	 	Subject to Clause 36.2 (Exceptions) any term of the Finance Documents may be
amended or waived only with the consent of the Majority Lenders and the Obligors’ Agent and
any such amendment or waiver will be binding on all Parties.
	 
	36.1.2	 	The Agent may effect, on behalf of any Finance Party, any amendment or waiver
permitted by this Clause 36.
	 
	36.1.3	 	Each Obligor agrees to any such amendment or waiver permitted by this Clause 36 which is
agreed to by the Obligors’ Agent.
	 
	36.2	 	Exceptions
	 
	36.2.1	 	An amendment or waiver 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 or an extension of any Commitment or the Total
Commitments;
	 
	 	(f)	 	a change to any Borrower or Guarantor other than in accordance with Clause 26
(Changes to the Obligors);
	 
	 	(g)	 	any provision which expressly requires the consent of all the Lenders;
	 
	 	(h)	 	Clause 2.2 (Finance Parties’ rights and obligations), Clause 8 (Mandatory
prepayment), Clause 25 (Changes to the Lenders) or this Clause 36;
	 
	 	(i)	 	the nature or scope of the Charged Property or the manner in which the
proceeds of enforcement of the Transaction Security are distributed (except to the
extent that it relates to a sale or disposal of an asset which is the




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	 	 	 	subject of the Transaction Security where such sale or disposal is expressly
permitted under this Agreement or any other Finance Document);






	 	(j)	 	the release of any Transaction Security unless permitted under this
Agreement or any other Finance Document or relating to a sale or disposal of an
asset which is the subject of the Transaction Security where such sale or disposal
is expressly permitted under this Agreement or any other Finance Document;
	 
	 	(k)	 	the nature or scope of the guarantee and indemnity granted under Clause 18
(Guarantee and Indemnity);
	 
	 	(l)	 	any amendment to Clause 30.5 (Proceeds of Enforcement); or
	 
	 	(m)	 	any extension of an Availability Period, shall not be made without the prior
consent of all the Lenders,






	36.2.2	 	An amendment or waiver which relates to the rights or obligations of the Agent, the
Arrangers or the Security Agent may not be effected without the consent of the Agent, the
Arrangers or the Security Agent.
	 
	37	 	Confidentiality
	 
	37.1	 	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 37.2 (Disclosure of
Confidential Information) and Clause 37.3 (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.
	 
	37.2	 	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 and 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




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	 	 	 	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;
	 
	 	(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 (b)(ii) above;
	 
	 	(v)	 	to whom information is required or requested to be disclosed by
any court of competent jurisdiction, 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 or for whose benefit that Finance Party charges, assigns
or otherwise creates Security (or may do so) pursuant to Clause
25.8 (Security Interests over Lender’s rights)
	 
	 	(vii)	 	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;
	 
	 	(viii)	 	who is a Party; or
	 
	 	(ix)	 	with the consent of the Parent;






	 	 	 	in each case, such Confidential Information as that Finance Party shall
consider appropriate if:






	 	(1)	 	in relation to paragraphs (b)(i), (b)(ii) and b(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;
	 
	 	(2)	 	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;
	 
	 	(3)	 	in relation to paragraphs (b)(v), (b)(vi) and (b)(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;




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	 	(c)	 	to any person appointed by that Finance Party or by a person to whom sub paragraph
(b)(i) or (b)(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 Parent and
the relevant Finance Party;
	 
	 	(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.






	37.3	 	Disclosure to numbering service providers






	 	(a)	 	The Agent may disclose to any national or international numbering service
provider appointed by the Agent to provide identification numbering services in
respect of this Agreement, the Facility and/or one or more Obligors the following
information:






	 	(i)	 	names of Obligors;
	 
	 	(ii)	 	country of domicile of Obligors;
	 
	 	(iii)	 	place of incorporation of Obligors;
	 
	 	(iv)	 	date of this Agreement;
	 
	 	(v)	 	the names of the Agent;
	 
	 	(vi)	 	date of each amendment and restatement of this Agreement;
	 
	 	(vii)	 	amount of Total Commitments;
	 
	 	(viii)	 	currencies of the Facility;
	 
	 	(ix)	 	type of the Facility;
	 
	 	(x)	 	ranking of Facility;
	 
	 	(xi)	 	Termination Date;
	 
	 	(xii)	 	changes to any of the information previously supplied pursuant to
sub paragraphs (i) to (xi) above; and
	 
	 	(xiii)	 	such other information agreed between the Agent and the
Parent, 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 Facility and/or one or more Obligors by a numbering service
provider and the information associated with each such number may






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	 	 	 	be disclosed to users of its services in accordance with the standard terms and conditions
of that numbering service provider.






	 	(c)	 	The Parent represents that none of the information set out in sub-paragraphs (i) to (xiii) of
paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.
	 
	 	(d)	 	The Agent shall notify the Parent and the other Finance Parties of:






	 	(i)	 	the name of any numbering service provider appointed by the Agent in respect of this
Agreement, the Facility and/or one or more Obligors; and
	 
	 	(ii)	 	the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one
or more Obligors by such numbering service provider.






	37.4	 	Entire agreement
	 
	 	 	This Clause 37 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.
	 
	37.5	 	Inside 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.
	 
	37.6	 	Notification of disclosure
	 
	 	 	Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the
Parent of the circumstances of any disclosure by it of Confidential Information made pursuant to
sub-paragraph (b)(v) of Clause 37.2
(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.
	 
	37.7	 	Continuing obligations
	 
	 	 	The obligations in this Clause 37 are continuing and, in particular, shall
survive and remain binding on each Finance Party for a period of twelve months
from the earlier of:






	 	(a)	 	the date on which all amounts payable by the Obligors under or in connection with the Finance
Documents 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.




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	38	 	Counterparts       
	 
	 	 	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.
	 
	39	 	Governing Law       
	 
	 	 	This Agreement and all non-contractual obligations
arising in any way whatsoever out of or in
connection with this Agreement shall be governed by,
construed and take effect in accordance with English
law.
	 
	40	 	Enforcement       
	 
	40.1	 	Jurisdiction of English courts
	 
	40.1.1	 	The courts of England shall have exclusive jurisdiction to settle any claim, dispute or
matter of difference which may arise in any way whatsoever out of or in connection with the
Finance Documents expressed to be governed by
English law (including a dispute regarding the existence, validity or termination of any
Finance Document or any claim for set off) or the legal relationships established by any
Finance Document (a Dispute), only where such Dispute is the subject of proceedings commenced
by the Obligor.
	 
	40.1.2	 	Where a Dispute is the subject of proceedings commenced by one or more Finance Parties, the
Finance Parties are entitled to bring such proceedings in any court or courts of competent
jurisdiction (including but not limited to the
courts of England). If any Obligor raises a counter-claim in the context of proceedings
commenced by one or more Finance Parties, that Obligor shall bring
such counter-claim before
the court seized of the Finance Party’s claim and no other court.
	 
	40.1.3	 	The commencement of legal proceedings in one or more jurisdictions shall not, to the extent
allowed by law, preclude the Finance Parties from commencing legal actions or proceedings in
any other jurisdiction, whether concurrently or not.
	 
	40.1.4	 	To the extent allowed by law, each Obligor irrevocably waives any objection it may now or
hereafter have on any grounds whatsoever to the laying of venue of any legal proceeding, and
any claim it may now or hereafter have that any such legal proceeding has been brought in an
inappropriate or inconvenient forum.
	 
	40.2	 	Service of process
	 
	 	 	Without prejudice to any other mode of service allowed under any relevant
law, each Obligor (other than an Obligor incorporated in England and Wales):






	 	(a)	 	irrevocably appoints Enstar (EU) Limited. (Attention:
Derek Reid, Avaya House, 2 Cathedral Hill, Guildford, Surrey GU2 7YL) as its agent for service of process in
relation to any proceedings before the English courts in connection with any Finance Document;
and
	 
	 	(b)	 	agrees that failure by an agent for service of process to notify the relevant Obligor of the
process will not invalidate the proceedings concerned; and
	 
	 	(c)	 	if any person appointed as an agent for service of process is unable for any reason to act as
agent for service of process, the Parent (on behalf of all the Obligors) must immediately (and
in any event within five days of such event
taking place) appoint another agent on terms acceptable to the Agent. Failing this, the Agent
may appoint another agent for this purpose.




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	 	(d)	 	The Parent confirms that Enstar (EU) Limited has expressly agreed and consented to the
provisions of Clause 39 (Governing law) and of Clause 40 (Enforcement).






	40.3	 	Waiver of Immunity
	 
	 	 	Each Obligor (to the fullest extent permitted by law) irrevocably and unconditionally:






	 	(a)	 	agrees not to claim any immunity from proceedings brought against it by any Finance Party in
relation to any Finance Document, and to ensure that no such claim is made on its behalf;
	 
	 	(b)	 	waives all rights of immunity in respect of it or its assets; and
	 
	 	(c)	 	consents generally in respect of such proceedings to the giving of relief or the issue of any
process in connection with such proceedings.




This Agreement has been entered into on the date stated at the beginning of this Agreement.





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Schedule 1 The Original Parties




Part 1




The Original Borrower




Enstar Group Limited




Part 2




The Original Guarantors




	 	 	 
	Name of Original Guarantor	 	Jurisdiction of Incorporation, Registration Number
	Enstar Group Limited
	 	Bermuda, EC30916
	 	 	 
	Hillcot Holdings Ltd
	 	Bermuda, EC32870
	 	 	 
	Virginia Holdings Limited
	 	Bermuda, EC37001
	 	 	 
	Revir Limited
	 	Bermuda, EC28913
	 	 	 
	Cavell Holdings Limited
	 	England and Wales, 01095628
	 	 	 
	Kenmare Holdings Ltd
	 	Bermuda, EC30917
	 	 	 
	Flatts Limited
	 	England and Wales, 06239044
	 	 	 
	Knapton Holdings Limited
	 	England and Wales, 07014132






Part 3




The Original Lenders — other than UK non-bank Lenders




	 	 	 
	Name of Original Lender	 	Commitments US$
	National Australia Bank Limited
	 	125,000,000
	 	 	 
	Barclays Bank PLC
	 	25,000,000






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Part 4




The Original Lenders — UK non-bank Lenders




	 	 	 
	Name of Original Lender	 	Commitments US$
	None	 	 






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Schedule 2 Conditions Precedent




Part 1




Conditions precedent to Initial Utilisation





	1	 	Obligors






	 	1.1	 	A copy of the Constitutional Documents of each Original Obligor, with such amendments as
the Security Agent may reasonably request.
	 
	 	1.2	 	A copy of a resolution of the board of directors of each Original Obligor:






	 	(a)	 	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;
	 
	 	(b)	 	authorising a specified person or persons to execute the Finance Documents to which it is a
party on its behalf; and
	 
	 	(c)	 	authorising a specified person or persons, on its behalf, to sign and/or despatch all
documents and notices (including, 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..






	 	1.3	 	A copy of the resolution of the Parent’s board of directors to be held on or
about 18 June 2011.
	 
	 	1.4	 	A specimen of the signature of each person authorised by the resolution referred to in
paragraph 1.2 above in relation to the Finance Documents and related documents.
	 
	 	1.5	 	A copy of a resolution signed by all the holders of the issued shares in each Original
Obligor, approving the terms of, and the transactions contemplated by, the Finance Documents
to which each Original Obligor is a party.
	 
	 	1.6	 	A copy of a resolution signed by all the holders of the issued shares in each of the
companies listed below approving the amendment of their respective constitutional documents to
remove from the directors any discretion to refuse to approve share transfers pursuant to
enforcement of the Transaction Security:






	 	(a)	 	Cumberland Holdings Limited;
	 
	 	(b)	 	Courtenay Holdings Limited; and
	 
	 	(c)	 	Knapton Insurance Limited.






	 	1.7	 	A copy of the register of members of each of the Bermudian Obligors.
	 
	 	1.8	 	A certificate of the Parent (signed by a director) confirming that borrowing or guaranteeing
or securing, as appropriate, the Total Commitments would not cause any borrowing, guarantee,
security or similar limit binding on any Original Obligor to be exceeded.
	 
	 	1.9	 	A certificate of an authorised signatory of each Original Obligor certifying that each copy
document relating to it specified in this Part 1 of 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 or, to the




103









 












	 	 	 	extent such document has previously been delivered to the Agent that such document has not
been amended or superseded since the date of such delivery.







	 
	2	 	Finance Documents       






	 	2.1	 	This Agreement executed by the members of the Group party to this Agreement.
	 
	 	2.2	 	Transaction Security Documents






	 	2.2.1	 	Bermudian law debenture (incorporating a fixed charge over its shares in Cumberland Holdings
Limited and a floating charge only) granted by the Parent in favour of the Security Agent.
	 
	 	2.2.2	 	Bermudian law debenture (incorporating a fixed charge over its shares in Courtenay Holdings
Limited and a floating charge only) granted by Kenmare Holdings Ltd in favour of the Security
Agent.
	 
	 	2.2.3	 	English law debenture (incorporating a fixed charge over its shares in Fieldmill Insurance
Company Limited, Hillcot Re Limited, Longmynd Insurance Company Limited and Mercantile
Indemnity Company Limited and a floating charge only) granted by Kenmare Holdings Ltd in favour of the Security
Agent.
	 
	 	2.2.4	 	English law debenture (incorporating a fixed charge over its shares in Brampton Insurance
Company Limited and a floating charge only) granted by Hillcot Holdings Ltd in favour of the
Security Agent.
	 
	 	2.2.5	 	English law debenture (incorporating a fixed charge over its shares in Unione Italiana (UK)
Reinsurance Company Limited and a floating charge only) granted by Virginia Holdings Ltd in
favour of the Security Agent.
	 
	 	2.2.6	 	English law debenture (incorporating a fixed charge over its shares in River Thames
insurance Company Limited and a floating charge only) granted by Revir Ltd in favour of the
Security Agent.
	 
	 	2.2.7	 	English law debenture (incorporating a fixed charge over its shares in Cavell Insurance
Company Limited and a floating charge only) granted by Cavell Holdings Ltd in favour of the
Security Agent.
	 
	 	2.2.8	 	English law debenture (incorporating a fixed charge over its shares in Marlon Insurance
Company Limited and a floating charge only) granted by Flatts Limited in favour of the
Security Agent.
	 
	 	2.2.9	 	English law debenture (incorporating a fixed charge over its shares in Knapton Insurance
Limited and a floating charge only) granted by Knapton Holdings Limited in favour of the
Security Agent.
	 
	 	2.2.10	 	The CRA Account Charge.






	 	2.3	 	The Fee Letters executed by the Parent.






	 
	3	 	Legal Opinion       
	 
	 
	 	 	The following legal opinions, each addressed to
the Agent, the Security Agent and the Original
Lenders and capable of being relied upon by any
persons to become Lenders pursuant to the primary
syndication of the Facility, to be in agreed form:




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	 	(a)	 	A legal opinion of Clyde & Co LLP, legal advisers to the Agent and the Arrangers as to
English law substantially in the form distributed to the Original Lenders prior to signing
this Agreement.
	 
	 	(b)	 	A legal opinion of Wakefield Quin Limited as to Bermudian law substantially in the form
distributed to the Original Lenders prior to signing this Agreement.






	4	 	Other Documents And Evidence






	 	4.1	 	If any Original Obligor is incorporated in a jurisdiction other than England and Wales,
evidence that Enstar (EU) Limited has accepted its appointment as process agent referred to in
Clause 40.2 (Service of process) and confirmed it agrees and consents to the provisions of
Clause 39 (Governing law) and of
Clause 40 (Enforcement).
	 
	 	4.2	 	The Group Structure Chart which shows the Group.
	 
	 	4.3	 	A copy, certified by an authorised signatory of the Parent to be a true copy, of the Original
Financial Statements of each Original Obligor.
	 
	 	4.4	 	A copy of any other Authorisation or other document, opinion or assurance which the Agent
notifies the Parent is necessary or desirable 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.
	 
	 	4.5	 	Any information and evidence in respect of any Obligor required by any Finance Party to
enable it to be satisfied with the results of all “know your customer” or other checks which
it is required to carry out in relation to such person.
	 
	 	4.6	 	A Certificate of the Parent (signed by a director) certifying that all necessary or desirable
Authorisations from any governmental authority or other regulatory body in connection with the
entry into and performance of the transactions
contemplated by any Finance Document (or for the validity or enforceability of any of those
documents) have been obtained and are in full force and effect together with certified copies
of those obtained.
	 
	 	4.7	 	A copy of the Budget.
	 
	 	4.8	 	The Parent shall have opened CRA Accounts and granted security in favour of and to the
satisfaction of the Security Agent in respect of its CRA Accounts.
	 
	 	4.9	 	A copy of all notices required to be sent under the Transaction Security Documents.
	 
	 	4.10	 	Originals of all share certificates transfers and stock transfer forms or equivalent, duly
executed by the relevant Obligor and other documents of title to be provided under the
Transaction Security Documents. In relation to the shares of Obligors incorporated in England,
all stock transfer forms are to be executed by two directors or a director and the
secretary of the company that owns the relevant shares but with the sections relating to the
consideration and the transferee left blank.
	 
	 	4.11	 	A certificate of the Parent (signed by a director):






	 	(a)	 	confirming that none of the financial covenants specified in Clause 22.2 (Financial
condition) is breached as at the First Utilisation Date or will be




105









 












	 	 	 	breached as a result of the proposed Loan to be made on the First Utilisation Date; and
	 
	 	(b)	 	setting out a list of each Material Company and the Consolidated Tangible Net Worth of each
Material Company as at the First Utilisation Date.






	 	4.12	 	Evidence that the arrangement fee and initial agency fee was paid on or before the date of
this Agreement.
	 
	 	4.13	 	Evidence that the outstanding commitment fees have or will on the First Utilisation Date be
paid in full.
	 
	 	4.14	 	Evidence that the Existing Facilities have or will on the First Utilisation Date be repaid in
full and all Security relating to the Existing Facilities has been
released in full




106









 











Part 2




Conditions precedent required to be delivered by an Additional Obligor





	1	 	An Accession Letter (if relevant) executed by the Additional Obligor and the Parent.
	 
	2	 	A copy of the constitutional documents of the Additional Obligor, with such amendments as the
Agent may reasonably require.
	 
	3	 	A copy of a resolution of the board of directors of the Additional Obligor:






	 	3.1	 	approving the terms of, and the transactions contemplated by, the Accession Letter and the
Finance Documents and resolving that it execute, deliver and perform the Accession Letter and
any other Finance Document to which it is party;
	 
	 	3.2	 	authorising a specified person or persons to execute the Accession Letter and other Finance
Documents on its behalf;
	 
	 	3.3	 	authorising a specified person or persons, on its behalf, to sign and/or despatch all other
documents and notices (including, in relation to an Additional Borrower, 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; and
	 
	 	3.4	 	authorising the Parent to act as its agent in connection with the Finance
Documents.






	4	 	A specimen of the signature of each person authorised by the resolution referred to
in paragraph 3 above.
	 
	5	 	A copy of a resolution signed by all the holders of the issued shares of the
Additional Obligor, approving the terms of, and the transactions contemplated by, the Finance
Documents to which the Additional Obligor is a party.
	 
	6	 	A certificate of the Additional Obligor (signed by a director) confirming that borrowing or
guaranteeing or securing, as appropriate, the Total Commitments would not cause any borrowing,
guarantee, security or similar limit binding on it to
be exceeded.
	 
	7	 	A certificate of an authorised signatory of the Additional Obligor certifying that
each copy document listed in this Part 2 of 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 the Accession Letter.
	 
	8	 	If available, the latest audited financial statements of the Additional Obligor.
	 
	9	 	The following legal opinions, each addressed to the Agent, the Security Agent and the
Lenders:






	 	9.1	 	A legal opinion of Clyde & Co LLP as advisers to the Agent in England, as to English law in the
form distributed to the Lenders prior to signing the Accession Letter.
	 
	 	9.2	 	If the Additional Obligor is incorporated in or has its centre of main interest or
establishment in a jurisdiction other than England and Wales or is executing
a Finance Document which is governed by a law other than English law,
a legal opinion of the legal advisers to the Agent in the jurisdiction of its incorporation,
centre of main interest or establishment (as applicable) or, as






107











 






the case may be, the jurisdiction of the governing law of that Finance
Document (Applicable Jurisdiction) as to the law of the Applicable
Jurisdiction and in the form distributed to the Lenders prior to signing the
Accession Letter.




	10	 	If the proposed Additional Obligor is incorporated in a jurisdiction other than
England and Wales, evidence that Enstar (EU) Limited as any process agent
referred to in Clause 40.2 (Service of process) has accepted its appointment and
confirmed it agrees and consents to the provisions of Clause 39 (Governing law)
and of Clause 40 (Enforcement).
	 
	11	 	The Transaction Security Documents or other security documents which are
required by the Agent to be executed by the proposed Additional Obligor.
	 
	12	 	Any notices or documents (including title deeds) required to be given or executed
under the terms of those security documents.
	 
	13	 	Share certificates and stock transfer forms executed in blank (as described in
paragraph 3(l) of Part 1 of this Schedule) as required by any security document.
	 
	14	 	Such documentary evidence as legal counsel to the Agent may require that such
Additional Obligor has complied with any law in its jurisdiction relating to financial
assistance or analogous process.
	 
	15	 	Evidence that all necessary or desirable Authorisations from any government
authority or other regulatory body in connection with the entry into and performance
of the transactions contemplated by the Accession Letter, any Finance Document
or Finance Document to which the Additional Obligor is party or for the validity or
enforceability of any of those documents have been obtained and are in full force
and effect, together with certified copies of those obtained.
	 
	16	 	A certificate of the Parent confirming that no Default is continuing or would occur as
a result of the Additional Obligor executing the Accession Letter or the Finance
Documents or the Finance Documents to which it is party.






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Schedule 3 Requests




Utilisation Request



From: [Borrower]/[Parent]



To: National Australia Bank Limited (as Agent)



Dated:



Dear Sirs




Enstar Group Limited — Facility Agreement dated [           ] (Facility Agreement)





	1	 	We refer to the Facility Agreement. This is a Utilisation Request. Terms defined in
the Facility Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request.
	 
	2	 	We wish to borrow a Loan on the following terms:
	 
	2.1	 	Borrower:           [ ]
	 
	2.2	 	Proposed Utilisation Date:           [ ] (or, if that is not a Business Day, the next Business
Day)
	 
	2.3	 	Amount:           [ ] or, if less, the Available Facility
	 
	2.4	 	Interest Period:            [ ]
	 
	2.5	 	Purpose:           [ ]
	 
	3	 	We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
	 
	4	 	We confirm that the proposed Loan would not cause the Net Worth Cover to be
less than or equal to 2.0:1.
	 
	5	 	This Utilisation Request is irrevocable.





Yours faithfully




authorised signatory for

[the Parent on behalf of [insert name of relevant Borrower]]/ [insert name of Borrower]




109









 





Schedule 4 Mandatory Cost Formula





	1	 	The Mandatory Cost is an addition to the interest rate to compensate the Lenders
for the cost of compliance with:






	1.1	 	the requirements of the Bank of England and/or the Financial Services
Authority (or, in either case, any other authority which replaces all or any of its
functions); or
	 
	1.2	 	the requirements of the European Central Bank.






	2	 	On the first day of each Interest Period (or as soon as possible thereafter) the
Agent shall calculate, as a percentage rate, a rate (the Additional Cost Rate) for
each Lender in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Agent as a weighted average of the Lenders’
Additional Cost Rates (weighted in proportion to the percentage participation of
each Lender in the relevant Loan) and will be expressed as a percentage rate per
annum.
	 
	3	 	The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender to the
Agent. This percentage will be certified by that Lender in its notice to the Agent to
be its reasonable determination of the cost (expressed as a percentage of that
Lender’s participation in all Loans made from that Facility Office) of complying with
the minimum reserve requirements of the European Central Bank in respect of
loans made from that Facility Office.
	 
	4	 	The Additional Cost Rate for any Lender lending from a Facility Office in the United
Kingdom will be calculated by the Agent as follows:
	 
	4.1	 	in relation to a Sterling Loan:




AB+C(B-D)+Ex0.01

              100-(A+C)



per cent per annum





	4.2	 	in relation to a Loan in any currency other than sterling:




Ex0.01

300 per cent per annum



where:





	 	(A)	 	is the percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Lender is from time to time required to maintain
as an interest free cash ratio deposit with the Bank of England to comply with
cash ratio requirements.
	 
	 	(B)	 	is the percentage rate of interest (excluding the Margin and the Mandatory
Cost and, if the Loan is an Unpaid Sum, the additional rate of interest
specified in paragraph (a) of Clause 10.3 (Default interest)) payable for the
relevant Interest Period on the Loan.




110









 






	 	(C)	 	is the percentage (if any) of Eligible Liabilities which that Lender is required
from time to time to maintain as interest bearing Special Deposits with the
Bank of England.
	 
	 	(D)	 	is the percentage rate per annum payable by the Bank of England to the
Agent on interest bearing Special Deposits.
	 
	 	(E)	 	is designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Agent as being the average of the most recent
rates of charge supplied by the Reference Banks to the Agent pursuant to
paragraph 7 below and expressed in pounds per £1,000,000.






	5	 	For the purposes of this Schedule:
	 
	5.1	 	Eligible Liabilities: and Special Deposits have the meanings given to them from
time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
	 
	5.2	 	Fees Rules: means the rules on periodic fees contained in the Financial Services
Authority Fees Manual or such other law or regulation as may be in force from time
to time in respect of the payment of fees for the acceptance of deposits;
	 
	5.3	 	Fee Tariffs: means the fee tariffs specified in the Fees Rules under the activity
group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required
pursuant to the Fees Rules but taking into account any applicable discount rate);
and
	 
	5.4	 	Tariff Base: has the meaning given to it in, and will be calculated in accordance
with, the Fees Rules.
	 
	6	 	In application of the above formulae, A, B, C and D will be included in the formulae
as percentages (i.e. 5 per cent. will be included in the formula as 5 and not as
0.05). A negative result obtained by subtracting D from B shall be taken as zero.
The resulting figures shall be rounded to four decimal places.
	 
	7	 	If requested by the Agent, each Reference Bank shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Agent, the rate of
charge payable by that Reference Bank to the Financial Services Authority
pursuant to the Fees Rules in respect of the relevant financial year of the Financial
Services Authority (calculated for this purpose by that Reference Bank as being the
average of the Fee Tariffs applicable to that Reference Bank for that financial year)
and expressed in pounds per £1,000,000 of the Tariff Base of that Reference Bank.
	 
	8	 	Each Lender shall supply any information required by the Agent for the purpose of
calculating its Additional Cost Rate. In particular, but without limitation, each
Lender shall supply the following information on or prior to the date on which it
becomes a Lender:
	 
	8.1	 	the jurisdiction of its Facility Office; and
	 
	8.2	 	any other information that the Agent may reasonably require for such purpose.
	 
	 	 	Each Lender shall promptly notify the Agent of any change to the information
provided by it pursuant to this paragraph.
	 
	9	 	The percentages of each Lender for the purpose of A and C above and the rates of
charge of each Reference Bank for the purpose of E above shall be determined by
the Agent based upon the information supplied to it pursuant to paragraphs 7 and 8
above and on the assumption that, unless a Lender notifies the Agent to the




111









 






	 	 	contrary, each Lender’s obligations in relation to cash ratio deposits and Special
Deposits are the same as those of a typical bank from its jurisdiction of
incorporation with a Facility Office in the same jurisdiction as its Facility Office.
	 
	10	 	The Agent shall have no liability to any person if such determination results in an
Additional Cost Rate which over or under compensates any Lender and shall be
entitled to assume that the information provided by any Lender or Reference Bank
pursuant to paragraphs 3, 7 and 8 above is true and correct in all respects.
	 
	11	 	The Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each
Lender based on the information provided by each Lender and each Reference
Bank pursuant to paragraphs 3, 7 and 8 above.
	 
	12	 	Any determination by the Agent pursuant to this Schedule in relation to a formula,
the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender
shall, in the absence of manifest error, be conclusive and binding on all Parties.
	 
	13	 	The Agent may from time to time, after consultation with the Parent and the
Lenders, determine and notify to all Parties any amendments which are required to
be made to this Schedule in order to comply with any change in law, regulation or
any requirements from time to time imposed by the Bank of England, the Financial
Services Authority or the European Central Bank (or, in any case, any other
authority which replaces all or any of its functions) and any such determination
shall, in the absence of manifest error, be conclusive and binding on all Parties.




112









 











Schedule 5 Form of Transfer Certificate



To: National Australia Bank Limited as Agent



From: [The Existing Lender] (Existing Lender) and [The New Lender] (New Lender)



Dated:




Enstar Group Limited — Facility Agreement dated [     ] (Facility
Agreement)





	1	 	We refer to the Facility Agreement. This is a Transfer Certificate. Terms defined in
the Facility Agreement have the same meaning in this Transfer Certificate unless
given a different meaning in this Transfer Certificate.
	 
	2	 	We refer to Clause 25.5 (Procedure for transfer):
	 
	2.1	 	The Existing Lender and the New Lender agree to the Existing Lender transferring
to the New Lender by novation all or part of the Existing Lender’s Commitment,
rights and obligations referred to in the Schedule in accordance with Clause 25.5
(Procedure for transfer) [OR] [ *** Each Existing Lender listed in Part 1 of the
Schedule transfers by novation to each New Lender listed in Part 2 of the Schedule
that portion of the outstanding Loans and Commitments in accordance
with Clause 25.5 (Procedure for transfer), such that:






	 	(a)	 	each New Lender will become a Lender under the Agreement with the
respective Commitment and portion of outstanding Loans set out opposite its
name in Part 3 of the Schedule; and
	 
	 	(b)	 	each Existing Lender’s Commitment and portion of outstanding Loans will be
reduced to the amounts set out opposite its name in Part 3 of the Schedule.
*** ]






	2.2	 	The proposed Transfer Date is [ *** ].
	 
	2.3	 	The Facility Office and address, fax number and attention details for notices of the
New Lender for the purposes of Clause 32.2 (Addresses) are set out in the
Schedule.
	 
	3	 	[ *** The/Each *** ] New Lender expressly acknowledges the limitations on the
Existing Lender[’s][s’] obligations set out in paragraph (c) of Clause 25.4 (Limitation
of responsibility of Existing Lenders).
	 
	4	 	[ *** The/Each *** ] New Lender confirms, for the benefit of the Agent and without
liability to any Obligor, that it is:






	 	(a)	 	[a Qualifying Lender falling within paragraph (i)(A) [or paragraph (ii)] of the
definition of Qualifying Lender);]
	 
	 	(b)	 	[a Treaty Lender;]
	 
	 	(c)	 	[not a Qualifying Lender]. 1






	5	 	[ *** The/Each New Lender confirms that the person beneficially entitled to interest
payable to that Lender in respect of an advance under a Finance Document is
either:







 




			
	1	 	Delete as applicable — each New Lender is required to confirm which of these three
categories it falls within.




113









 











	 	(a)	 	a company resident in the United Kingdom for United Kingdom tax purposes;
or
	 
	 	(b)	 	a partnership each member of which is:






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






	 	(c)	 	a company not so resident in the United Kingdom which carries on a trade in
the United Kingdom through a permanent establishment and which brings
into account interest payable in respect of that advance in computing the
chargeable profits (within the meaning of section 19 of the CTA) of that
company; or *** ]2






	6	 	[The New Lender confirms (for the benefit of the Agent and without liability to any
Obligor) that it is a Treaty Lender that holds a passport under the HMRC DT
Treaty Passport scheme (reference number [ ]) and is tax resident in [ ]*, so that
interest payable to it by borrowers is generally subject to full exemption from UK
withholding tax and notifies the Parent that:






	 	(a)	 	each Borrower which is a Party as a Borrower as at the Transfer Date must,
to the extent that the New Lender becomes a Lender under a Facility which is
made available to that Borrower pursuant to clause 2.1 (The Facilities) of the
Facilities Agreement, make an application to HM Revenue & Customs under
form DTTP2 within 30 days of the Transfer Date; and
	 
	 	(b)	 	each Additional Borrower which becomes an Additional Borrower after the
Transfer Date must make an application to HM Revenue & Customs under
form DTTP2 within 30 days of becoming an Additional Borrower.]3






	7	 	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.
	 
	8	 	For the purpose of Clause 32.6 (Use of websites) the New Lender is a [ *** Website
Lender *** ] [ *** Paper Form Lender *** ]. *** ] OR [ *** each New Lender specifies
in Part 4 of the Schedule opposite its name whether it is a Website Lender or a
Paper Form Lender. *** ]
	 
	9	 	This Transfer Certificate is governed by English law.
	 
	10	 	The parties to this Transfer Certificate intend it to take effect as a deed and this
Transfer Certificate shall be treated as having been duly executed and delivered as
a deed only upon being dated.





IN WITNESS WHEREOF the authorised signatories of the parties have executed this deed
on the day and year first above written.





 




			
	2	 	Include if New Lender comes within paragraph (i)(B) of the definition of Qualifying
Lender in Clause 14.1 (Definitions)
	 
	3	 	This confirmation must be included if the New Lender holds a passport under the HMRC DT
Treaty Passport
scheme and, as at the Transfer Date, wishes that scheme to apply to the Facility Agreement.






114











 





The Schedule




Commitment/rights and obligations to be transferred



[insert relevant details]



[Facility Office address, fax number and attention details for notices and account details for
payments,]




	 	 	 

	[Existing Lender]

	 	[New Lender]
	 
	 	 
	By:

	 	By:






This Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as [•].




[Agent]




By:




[ *** OR FOR GLOBAL TRANSFER CERTIFICATES *** ]

Part 1

The Existing Lenders

[ *** ]

[ *** ]

[ *** ]

Part 2

The New Lenders

[ *** ]

[ *** ]

[ *** ]

Part 3



Details of portion of outstanding Loans and Commitment



	 	 	 	 	 
	Lender	 	Commitment	 	Loans
	[*list here existing and new lenders*] [***]

[***] [***] [***]

	 	[**]
	 	[**]






115









 






Part 4




New Lenders’ Administrative Details



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Address for	 	 	 	 	 	 	 	 
	 	 	Facility office	 	 	service of	 	 	 	 	 	 	Website or	 
	 	 	Address/Fax	 	 	notices	 	 	Address for	 	 	Paper Form	 
	New Lender	 	no.Attention of	 	 	(if different)	 	 	Payment	 	 	Lender	 
	[ *** ]
	 	 	[ *** ]	 	 	 	[ *** ]	 	 	 	[ *** ]	 	 	 	[ *** ]	 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	EXECUTED as a Deed by

	 	 	)	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	[ *** Each Existing Lender *** ]

	 	 	 	 	 	 	)	 	 	 	 	 	 	Authorised
	Signatory
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Executed as a Deed by

	 	 	)	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	[ *** Each New Lender *** ]

	 	 	)	 	 	 	 	 	 	 	 	 	 	Authorised Signatory
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	The Transfer Certificate is

	 	 	 	 	 	 	 	 	 	 	)	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	accepted by the Agent and the

	 	 	 	 	 	 	 	 	 	 	)	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Transfer Date is confirmed by the

	 	 	 	 	 	 	 	 	 	 	)	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Agent as [ *** ]

	 	 	 	 	 	 	 	 	 	 	)	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Signed by [National Australia Bank Limited (ABN 12004044937) (as Agent)]          )
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Signed by [National Australia Bank Limited (ABN 12004044937) (as Security Agent)]
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 	 	 	 	 	 	 	 	 






116









 






Schedule 6 Form of Assignment Agreement




To: National Australia Bank Limited as Agent




From: [the Existing Lender] (Existing Lender) and [the New Lender] (New Lender)




Dated: [***]




Enstar Group Limited -Facility Agreement dated [     ] (Facility Agreement)





	1	 	We refer to the Facility Agreement. This is an Assignment Agreement.
	 
	2	 	(a) We refer to Clause 25.6 (Procedure for assignment).






	 	(a)	 	The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender
under the Facility Agreement, the other Finance Documents and in respect of the Transaction
Security which correspond to that portion of the Existing Lender’s Commitments and participations
in Loans under the Facility 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 Commitments and participations in Loans under
the Facility 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 (c) above.






	3	 	The proposed Transfer Date is [***].
	 
	4	 	On the Transfer Date the New Lender becomes:






	 	(a)	 	Party to the Finance Documents as a Lender; and
	 
	 	(b)	 	Party to [*** other relevant agreements in other relevant capacity***].






	5	 	The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set
out in paragraph (c) of Clause 25.4 (Limitation of responsibility of Existing Lenders).
	 
	6	 	The Facility Office and address, fax number and attention details for notices of the New Lender
for the purposes of Clause 32.2 (Addresses) are set out in the Schedule to this Assignment
Agreement.
	 
	7	 	[ *** The/Each *** ] New Lender confirms, for the benefit of the Agent and without liability to
any Obligor, that it is:






	 	(a)	 	[a Qualifying Lender falling within paragraph (i)(A) [or paragraph (ii)] of the definition of Qualifying Lender);]
	 
	 	(b)	 	[a Treaty Lender;]
	 
	 	(c)	 	[not a Qualifying Lender].4 







 




			
	4	 	Delete as applicable — each New Lender is required to confirm which of these three categories it falls within.




117









 











	8	 	[*** The New Lender confirms that the person beneficially entitled to interest payable to that
Lender in respect of an advance under a Finance Document is either:






	 	(a)	 	a company resident in the United Kingdom for United Kingdom tax purposes; or
	 
	 	(b)	 	a partnership each member of which is:






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






	 	(c)	 	a company not so resident in the United Kingdom which carries on a trade in the United Kingdom
through a permanent establishment and which brings into account interest payable in respect of that
advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that
company; or *** ].5 






	9	 	[The New Lender confirms (for the benefit of the Agent and without liability to any Obligor) that
it is a Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme (reference
number [ ]) and is tax resident in [ ]*, so that interest payable to it by borrowers is generally
subject to full exemption from UK withholding tax and notifies the Parent that:






	 	(a)	 	each Borrower which is a Party as a Borrower as at the Transfer Date must, to the extent that
the New Lender becomes a Lender under a Facility which is made available to that Borrower pursuant
to clause 2.1 (The Facilities) of the Facilities Agreement, make an application to HM Revenue &
Customs under form DTTP2 within 30 days of the Transfer Date; and
	 
	 	(b)	 	each Additional Borrower which becomes an Additional Borrower after the Transfer Date must make
an application to HM Revenue & Customs under form DTTP2 within 30 days of becoming an Additional
Borrower.]6 






	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.
	 
	 	 	[*** Consider including checklist of steps necessary for the New Lender to obtain the benefit of
the Transaction Security ***].
	 
	11	 	For the purpose of Clause 32.6 (Use of Websites) the New Lender is a [*** Website Lender ***]
[*** Paper Form Lender ***]
	 
	12	 	This Assignment Agreement is governed by English law.







 




			
	5	 	Include if New Lender comes within paragraph (i)(B) of the definition of Qualifying
Lender in Clause 14.1 (Definitions)
	 
	6	 	This confirmation must be included if the New Lender holds a passport under the HMRC
DT Treaty Passport scheme and, as at the Transfer Date, wishes that scheme to apply to the Facility Agreement.




118









 











	13	 	This Assignment Agreement has been [*** executed and delivered as a deed ***] [*** entered into ***] on the date stated at the beginning of this Assignment Agreement.




119









 











THE SCHEDULE




Commitment/rights and obligations to be transferred by

assignment, release and accession



[*** insert relevant details ***]




[*** Facility office address, fax number and attention details for notices and account details for
payments ***]




	 	 	 

	[*** Existing Lender ***]

	 	[*** New Lender ***]
	By:

	 	By:






This Assignment Agreement is accepted by the Agent and the Transfer Date is confirmed as [***].




[*** Signature of this Assignment Agreement by the Agent constitutes confirmation by the Agent of
receipt of notice of the assignment referred to herein, which notice the Agent receives on behalf
of each Finance Party. ***]




[*** Agent ***]




By:




120









 








Schedule 7 Form of Accession Letter




To: National Australia Bank Limited as Agent




From: [Subsidiary] and Enstar Group Limited




Dated:




Dear Sirs




Enstar Group Limited — Facility Agreement dated [            ] (Facility Agreement)





	1	 	We refer to the Facility Agreement. This is an Accession Letter. Terms defined in the Facility
Agreement have the same meaning in this Accession Letter unless given a different meaning in this
Accession Letter.
	 
	2	 	[Subsidiary] agrees to become an [Additional Borrower]/[Additional Guarantor] and to be bound by
the terms of the Facility Agreement and the other Finance Documents as an [Additional
Borrower]/[Additional Guarantor] pursuant to Clause
	 
	 	 	[26.2 (Additional Borrowers)]/[26.3 (Additional Guarantors)] of the Facility Agreement is a company
duly incorporated under the laws of [name of relevant jurisdiction] and is a limited liability
company and registered number [ ].
	 
	3	 	[Subsidiary’s] administrative details are as follows:
	 
	 	 	Address:
	 
	 	 	Fax No.:
	 
	 	 	Attention:
	 
	4	 	This Accession Letter is governed by English Law





[This Accession Letter is entered into by deed.]




	 	 	 	 	 	 	 

	 
	 
	 	 	 	 	 	 
	For and on behalf of

	 	For and on behalf of
	 	 	 	 
	Enstar Group Limited

	 	[Subsidiary]	 	 	 	 






121









 






Schedule 8 Form of Compliance Certificate




To: National Australia Bank Limited as Agent




From: Enstar Group Limited




Dated:




Dear Sirs




Enstar Group Limited -Facility Agreement dated [           ] (Facility Agreement)





	1	 	We refer to the Facility Agreement. This is a Compliance Certificate. Terms defined in the
Facility Agreement have the same meaning when used in this Compliance Certificate unless given a
different meaning in this Compliance Certificate.
	 
	2	 	We confirm that as at [*** insert the relevant testing date/ the Testing Date ***]:






	 	(a)	 	Borrower Net Worth: the Consolidated Tangible Net Worth of the Parent was [*] and therefore the
requirements of Clause 22.2.1(a) (Borrower Net Worth) have been met;
	 
	 	(b)	 	Borrower Gearing Ratio: The consolidated Financial Indebtedness of the Parent was [*] and
Consolidated Tangible Net Worth of the Parent was [*], therefore the Gearing Ratio was [*] and the
requirements of Clause 22.2.1(b) (Borrower Gearing Ratio) have been met.
	 
	 	(c)	 	Regulatory Cover: the Regulatory Cover of each of the following Regulated Entities was as
specified on the right-hand column below and therefore the requirements of Clause 22.2.1(c)
(Regulatory Cover) have been met:





	 	 	 
	Regulated Entity	 	Regulatory Cover
	[*]

	 	[*]
	 	 	 
	 	 	 
	 	 	 
	 	 	 







	 	(d)	 	Net Worth Cover: The Consolidated Tangible Net Worth of all the relevant Material Companies was
[*] and Facility Debt was [*], therefore the Net Worth Cover was [*] and the requirements of Clause
22.2.1(d) (Net Worth Cover) have been met. For the purposes of calculating the Net Worth Cover
percentage the Consolidated Tangible Net Worth of each relevant Material Company was as set out in the table below:





	 	 	 
	Material Company	 	Consolidated Tangible Net Worth
	[*]

	 	[*]
	 	 	 
	 	 	 
	 	 	 
	 	 	 






122









 







	 	(e)	 	Requisite Rating:






	 	(i)	 	the average rating of the aggregate investment portfolio (determined by reference to the
individual rating given by the Rating Agency to each investment) of the Material Companies is not
less than A-; and
	 
	 	(ii)	 	the short term rating and/or long term rating of investments as determined by the Rating
Agency for at least 87.5% of the total value of the investments held by the Material Companies have
a rating of not less than BBB or are held in cash and no investments are advised by J.C. Flowers &
Co. LLC or its associated parties,






in each case as demonstrated below. [attach details of calculations, including a breakdown of how
the average rating of the aggregate investment portfolio is calculated setting out the % of the
total value of investments held in each rating or category] and therefore the requirements of
Clause 22.2.1(e) (Requisite Rating) have been met.




	3.	 	We confirm that no Default is continuing. 7





	 	 	 	 	 
	 	 	 
	[insert applicable certification language]
 	 	 
	 
	for and on behalf of 	 	 
	[name of Auditors of Enstar Group Limited] 	 	 
	 





 




			
	7	 	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.






123











 





Schedule 9 LMA Form of Confidentiality Undertaking




LMA CONFIDENTIALITY LETTER



FOR PRIMARY SYNDICATION



[Letterhead of Arranger]




	To:	 	 [insert name of Potential Lender]
	 
	Re:	 	 the Facility
	 
	 	 	Parent:
	 
	 	 	Amount:
	 
	 	 	Agent:





Dear Sirs




We understand that you are considering participating in the Facility. In consideration of us
agreeing to make available to you certain information, by your signature of a copy of this
letter you agree as follows:





	1	 	Confidentiality Undertaking
	 
	 	 	You undertake:
	 
	1.1	 	to keep the Confidential Information confidential and not to disclose it to anyone
except as provided for by paragraph 2 below and to ensure that the Confidential
Information is protected with security measures and a degree of care that would
apply to your own confidential information;
	 
	1.2	 	to keep confidential and not disclose to anyone the fact that the Confidential
Information has been made available or that discussions or negotiations are taking
place or have taken place between us in connection with the Facility;
	 
	1.3	 	to use the Confidential Information only for the Permitted Purpose;
	 
	1.4	 	(to use all reasonable endeavours to ensure that any person to whom you pass
any Confidential Information (unless disclosed under paragraph 2(b) below)
acknowledges and complies with the provisions of this letter as if that person were
also a party to it; and
	 
	1.5	 	not to make enquiries of any Obligor or member of the Group or any of their
officers, directors, employees or professional advisers relating directly or indirectly
to the Facility.
	 
	2	 	Permitted Disclosure
	 
	 	 	We agree that you may disclose confidential information:
	 
	2.1	 	to members of the Participant Group and their officers, directors, employees and
professional advisers to the extent necessary for the Permitted Purpose and to any
auditors of members of the Participant Group;
	 
	2.2	 	where requested or required by any court of competent jurisdiction or any
competent judicial, governmental, supervisory or regulatory body, (ii) where
required by the rules of any stock exchange on which the shares or other securities
of any member of the Participant Group are listed or (iii) where required by the laws




124









 






	 	 	 or regulations of any country with jurisdiction over the affairs of any member of the
Participant Group; or
	 
	 	 	with the prior written consent of us and the Parent.
	 
	3	 	Notification Of Required Or Unauthorised Disclosure
	 
	 	 	You agree (to the extent permitted by law) to inform us of the full circumstances of
any disclosure under paragraph 2(b) or upon becoming aware that confidential
information has been disclosed in breach of this letter.
	 
	4	 	Return Of Copies
	 
	 	 	If we so request in writing, you shall return all confidential information supplied to
you by us and destroy or permanently erase all copies of confidential information
made by you and use all reasonable endeavours to ensure that anyone to whom
you have supplied any confidential information destroys or permanently erases
such confidential information and any copies made by them, in each case save to
the extent that you or the recipients are required to retain any such confidential
information by any applicable law, rule or regulation or by any competent judicial,
governmental, supervisory or regulatory body or in accordance with internal policy,
or where the confidential information has been disclosed under paragraph 2(b)
above.
	 
	5	 	Continuing Obligations
	 
	 	 	The obligations in this letter are continuing and, in particular, shall survive the
termination of any discussions or negotiations between you and us.
Notwithstanding the previous sentence, the obligations in this letter shall cease (a)
if you become a party to or otherwise acquire (by assignment or sub participation)
an interest, direct or indirect in the facility or (b) twelve months after you have
returned all confidential information supplied to you by us and destroyed or
permanently erased all copies of confidential information made by you (other than
any such confidential information or copies which have been disclosed under
paragraph 2 above (other than sub-paragraph 2(a)) or which, pursuant to
paragraph 4 above, are not required to be returned or destroyed).
	 
	6	 	No Representation; Consequences Of Breach, Etc
	 
	 	 	You acknowledge and agree that:
	 
	6.1	 	neither we nor any of our officers, employees or advisers (each a Relevant
Person) (i) make any representation or warranty, express or implied, as to, or
assume any responsibility for, the accuracy, reliability or completeness of any of
the Confidential Information or any other information supplied by us or any member
of the Group or the assumptions on which it is based or (ii) shall be under any
obligation to update or correct any inaccuracy in the Confidential Information or any
other information supplied by us or any Obligor or any member of the Group or be
otherwise liable to you or any other person in respect to the Confidential
Information or any such information; and
	 
	6.2	 	we or the Obligors or any members of the Group may be irreparably harmed by the
breach of the terms of this letter and damages may not be an adequate remedy;
each Relevant Person or Obligor or any member of the Group may be granted an
injunction or specific performance for any threatened or actual breach of the
provisions of this letter by you.




125









 






	7	 	No Waiver; Amendments, Etc
	 
	 	 	This letter sets out the full extent of your obligations of confidentiality owed to us in
relation to the information the subject of this letter. No failure or delay in exercising
any right, power or privilege under this letter will operate as a waiver thereof nor
will any single or partial exercise of any right, power or privilege preclude any
further exercise thereof or the exercise of any other right, power or privileges under
this letter. The terms of this letter and your obligations under this letter may only
be amended or modified by written agreement between us.
	 
	8	 	Inside Information
	 
	 	 	You acknowledge 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 relating to insider dealing and you undertake not
to use any confidential information for any unlawful purpose.
	 
	9	 	Nature Of Undertakings
	 
	 	 	The undertakings given by you under this letter are given to us and (without
implying any fiduciary obligations on our part) are also given for the benefit of the
borrower, each other Obligor and each other member of the Group.
	 
	10	 	Third Party Rights
	 
	10.1	 	Subject to paragraph 6 and paragraph 9 the terms of this letter may be enforced
and relied upon only by you and us and the operation of the Contracts (Rights of
Third Parties) Act 1999 is excluded.
	 
	10.2	 	Notwithstanding any provisions of this letter, the parties to this letter do not require
the consent of any Relevant Person or any Obligor or any member of the Group to
rescind or vary this letter at any time.
	 
	11	 	Governing Law And Jurisdiction
	 
	 	 	This letter (including the agreement constituted by your acknowledgement of its
terms) shall be governed by and construed in accordance with the laws of England
and the parties submit to the non-exclusive jurisdiction of the English courts.
	 
	12	 	Definitions
	 
	 	 	In this letter (including the acknowledgement set out below):
	 
	 	 	Confidential Information means any information relating to the Parent, the Group
and the Facilty 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 information that (a) is or
becomes public knowledge other than as a direct or indirect result of any breach of
this letter or (b) is known by you before the date the information is disclosed to you
by us or any of our affiliates or advisers or is lawfully obtained by you after that
date, other than from a source which is connected with the Group and which, in
either case, as far as you are aware, has not been obtained in violation of, and is
not otherwise subject to, any obligation of confidentiality.
	 
	 	 	Group means the Parent and each of its holding companies and subsidiaries and
each subsidiary of each of its holding companies (as each such term is defined in
the Companies Act 1985).




126









 






	 	 	Obligor means [ *** ].
	 
	 	 	Participant Group means you, each of your holding companies and subsidiaries
and each subsidiary of each of your holding companies (as each such term is
defined in the Companies Act 1985).
	 
	 	 	Permitted Purpose means considering and evaluating whether to enter into the
Facility.




Please acknowledge your agreement to the above by signing and returning the enclosed
copy.




Yours faithfully




For and on behalf of




National Australia Bank Limited [and Barclays Corporate] (as Arrangers)





	To:	 	 National Australia Bank Limited [and Barclays Corporate] (as Arrangers)




The Parent, each other Obligor and each other member of the Group




We acknowledge and agree to the above:




For and on behalf of




[Potential Lender]




127









 





Schedule 10 Timetables




Loans




	 	 	 
	 	 	Loans in US Dollars
	 
	Delivery of a duly completed Utilisation
Request (Clause 5 (Delivery of a Utilisation
Request)) (Clause 11.1 (Selection of Interest
Periods and Terms))

	 	3 Business Days prior to the date of the
Loan
	 
	 	 
	 

	 	9.30 a.m.
	 
	 	 
	Agent notifies the Lenders of the Loan in
accordance with Clauses 5.4 (Lenders’
participation)

	 	3 Business Days prior to the date of the
Loan
	 
	 	 
	 

	 	3.00 p.m.
	 
	 	 
	LIBOR is fixed

	 	Quotation Day as of 11.00 a.m.







128










 





Schedule 11 Security Agent





	1	 	Appointment
	 
	1.1	 	Each other Finance Party appoints the Security Agent to act as its agent and
trustee under and in connection with the Finance Documents.
	 
	1.2	 	Each other Finance Party:
	 
	1.2.1	 	authorises the Security Agent to exercise the rights, powers, authorities and
discretions specifically given to the Security Agent under or in connection with the
Finance Documents together with any other incidental rights, powers, authorities
and discretions;
	 
	1.2.2	 	confirms its approval of each Transaction Security Document; and
	 
	1.2.3	 	authorises and directs the Security Agent (by itself or by any Delegate) to execute
and enforce the Transaction Security Documents as trustee, agent or in any other
role (and whether or not expressly in that Finance Party’s name) on its behalf,
subject always to the terms of the Finance Documents.
	 
	2	 	Duties
	 
	2.1	 	Except where a Finance Document specifically provides otherwise, the Security
Agent is not obliged to review or check the adequacy, accuracy or completeness of
any document it forwards to another Party.
	 
	2.2	 	The Security Agent has only those duties which are expressly specified in the
Finance Documents.
	 
	2.3	 	The Security Agent’s duties under the Finance Documents are solely mechanical
and administrative in nature.
	 
	2.4	 	Any requirement that the Security Agent is to “act reasonably” is to be construed as
an obligation on the Finance Parties which are approached by it for instructions in
accordance with this Agreement in relation to the relevant matter and not as an
individual obligation on the Security Agent in that capacity.
	 
	2.5	 	The Security Agent shall promptly inform the Agent of:
	 
	2.5.1	 	the contents of any notice or document received by it in its capacity as Security
Agent from an Obligor under any Finance Document; and
	 
	2.5.2	 	the occurrence of any Event of Default or any default by an Obligor in the due
performance of or compliance with its obligations under any Finance Document of
which the Security Agent has received notice from any other party to this
Agreement.
	 
	3	 	Relationship
	 
	3.1	 	The relationship between the Security Agent and each other Finance Party is that
of principal and agent save only that the benefits of the Transaction
Security Documents are held by the Security Agent as trustee for them (to the extent that
any amount is or is capable of being secured thereby).
	 
	3.2	 	In relation to any jurisdiction the courts of which would not recognise or give effect
to the trusts expressed to be created by any Finance Document, the
relationship of each other Finance Party to the Security Agent shall be construed solely as one of
principal and agent but, to the fullest extent permissible under the laws of such




129









 






	 	 	jurisdiction, all the other provisions of the Finance Document shall have full force
and effect between the Parties.
	 
	3.3	 	The Security Agent shall not be liable to any Party for any breach by any other
Party of any Finance Document.
	 
	4	 	No Fiduciary Duties
	 
	4.1	 	Nothing in the Finance Documents makes the Security Agent a fiduciary for any
other person.
	 
	5	 	Business with the Group


If the Security Agent is also a Lender, in its capacity as Lender it will retain the
same rights and powers under the Finance Documents as any other Lender and
will exercise those rights and powers as a Lender separately from its role as
Security Agent.
	 
	6	 	Rights and Discretions
	 
	6.1	 	The Security Agent may rely on:
	 
	6.1.1	 	any representation, notice or document believed by it to be genuine, correct and
appropriately authorised; and
	 
	6.1.2	 	any statement made by a director, authorised signatory or employee of any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify.
	 
	6.2	 	The Security Agent may assume (unless it has received notice to the contrary in its
capacity as agent for the other Finance Parties) that:
	 
	6.2.1	 	no Event of Default has occurred (unless it has actual knowledge of an Event of
Default arising under Clause 24.1 (Non-payment) of this Agreement);
	 
	6.2.2	 	any right, power, authority or discretion vested in the Majority Lenders or any other
person has not been exercised; and
	 
	6.2.3	 	any notice or request made by the Parent is made on behalf of and with the
consent and knowledge of all the Obligors.
	 
	6.3	 	The Security Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other experts.
	 
	6.4	 	The Security Agent may act in relation to the Finance Documents through its
personnel and Delegates.
	 
	6.5	 	The Security Agent may disclose to any other Party any information it reasonably
believes it has received as agent under the Finance Documents.
	 
	6.6	 	Notwithstanding any other provision of any Finance Document to the contrary, the
Security Agent is not obliged to do or omit to do anything if it would or might in its
reasonable opinion constitute a breach of any law or a breach of a fiduciary duty or
duty of confidentiality.
	 
	7	 	Responsibility
	 
	 	 	The Security Agent is not responsible for:




130









 






	7.1	 	the adequacy, accuracy and/or completeness of any information (whether oral or
written) supplied by any person given in or in connection with any Finance
Document or the transactions contemplated in the Finance Documents.
	 
	7.2	 	the legality, validity, effectiveness, adequacy or enforceability of any Finance
Document or any other agreement, arrangement or document entered into, made
or executed in anticipation of or in connection with any Finance Document or the
Transaction Security; or
	 
	7.3	 	for any failure in perfecting or protecting the Security created by any Transaction
Security Document including any failure to:
	 
	7.3.1	 	take any necessary registration or recordings or filings of or otherwise protect the
relevant Security under any laws in any jurisdiction;
	 
	7.3.2	 	give notice to any person of the execution of any Transaction Security Document;
or
	 
	7.3.3	 	to obtain any authorisation for the creation of any Security, unless directly caused
by its gross negligence or wilful misconduct.
	 
	8	 	Exclusion of Liability
	 
	8.1	 	Without limiting paragraph 8.2 below, the Security Agent will not be liable for any
action taken by it under or in connection with any Finance Document, unless
directly caused by its gross negligence or wilful misconduct.
	 
	8.2	 	No Party (other than the Security Agent) may take any proceedings against any
officer, employee or Delegate of the Security Agent in respect of any claim it might
have against the Security Agent or in respect of any act or omission of any kind by
that officer, employee or Delegate in relation to any Finance Document and any
officer, employee or Delegate of the Security Agent may rely on this provision
subject to Clause 1.8 (Third Party Rights) and the provisions of the Third Parties
Act.
	 
	8.3	 	The Security Agent will not 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 the Security Agent if the Security Agent 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 the Security
Agent for that purpose.
	 
	8.4	 	The Parties agree that the Security Agent shall not be subject to the duty of care
imposed on trustees by the Trustee Act 2000.
	 
	8.5	 	Nothing in this Agreement shall oblige the Security Agent to carry out any “know
your customer” or other checks in relation to any person on behalf of any other
Finance Party and every other Finance Party confirms to the Security Agent 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 the Security Agent.
	 
	9	 	Indemnity
	 
	9.1	 	Each other Finance Party shall indemnify the Security Agent, within three Business
Days of demand, against any cost, loss or liability incurred by the Security Agent
(otherwise than by reason of the Security Agent’s gross negligence or wilful
misconduct) in acting as Security Agent under the Finance Documents (unless the




131









 






	 	 	Security Agent has been reimbursed by an Obligor pursuant to a Finance
Document).
	 
	9.2	 	The liability shall be divided between such Finance Parties pro rata to their
respective aggregate Commitments from time to time or if all Commitments have
been reduced to zero, their respective aggregate Commitments immediately prior
to that reduction.
	 
	9.3	 	The Security Agent may, in priority to any payment to the Finance Parties,
indemnify itself out of the Obligors’ assets charged by the Transaction Security
Documents in respect of, and pay and retain, all sums necessary to give effect to
this indemnity and to all other indemnities given to it in the other Finance
Documents in its capacity as Security Agent. The Security Agent shall have a lien
on the Transaction Security Documents and the proceeds of enforcement of the
Transaction Security Documents for all such sums.
	 
	10	 	Resignation and Additional Security Agents
	 
	10.1	 	The Security Agent may resign and appoint one of its Affiliates acting through an
office in the United Kingdom as successor by giving notice to the other Finance
Parties and the Parent.
	 
	10.2	 	Alternatively the Security Agent may resign by giving notice to the other Finance
Parties and the Parent, in which case the Majority Lenders (after consultation with
the Parent) may appoint a successor Security Agent.
	 
	10.3	 	If the Majority Lenders have not appointed a successor Security Agent in
accordance with paragraph 10.2 above within 30 days after notice of resignation
was given, the Security Agent (after consultation with the Parent) may appoint a
successor Security Agent (acting through an office in the United Kingdom).
	 
	10.4	 	The retiring Security Agent shall, at its own cost, make available to the successor
Security Agent such documents and records and provide such assistance as the
successor Security Agent may reasonably request for the purposes of performing
its functions as Security Agent under the Finance Documents.
	 
	10.5	 	The Security Agent’s resignation notice shall only take effect upon the appointment
of a successor.
	 
	10.6	 	Upon the appointment of a successor, the retiring Security Agent shall be
discharged from any further obligation in respect of the Finance Documents but
shall remain entitled to the benefit of this Schedule. 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.
	 
	10.7	 	After consultation with the Parent, the Majority Lenders may, by notice to the
Security Agent, require it to resign in accordance with paragraph 10.2 above. In
this event, the Security Agent shall resign in accordance with paragraph 10.2
above.
	 
	10.8	 	The Security Agent may at any time appoint (and subsequently remove) any
person to act as a separate security agent or trustee or as a co-agent or co-trustee
jointly with it (any such person, an Additional Security Agent):
	 
	10.8.1	 	if it is necessary in performing its duties and if the Security Agent considers that
appointment to be in the interest of the Finance Parties; or




132









 






	10.8.2	 	for the purposes of complying with or conforming to any legal requirements
restrictions or conditions which the Security Agent deems to be relevant; or
	 
	10.8.3	 	for the purposes of obtaining or enforcing any judgement or decree in any
jurisdiction, and the Security Agent will give notice to the other Parties of any such
appointment.
	 
	10.9	 	Any Additional Security Agent appointed in accordance with paragraph 10.8 above
shall (subject to the terms of this Agreement) have the rights, powers and
discretions (not exceeding those conferred on the Security Agent by this
Agreement) and the duties and obligations as are conferred or imposed on the
Additional Security Agent by the instrument of its appointment.
	 
	10.10	 	The remuneration that the Security Agent may pay to any Additional Security Agent
and any reasonable costs and expenses (properly incurred) incurred by any
Additional Security Agent in performing its functions pursuant to its appointment
will, for the purposes of this Agreement, be treated as costs and expenses incurred
by the Security Agent.
	 
	11	 	Confidentiality
	 
	11.1	 	In acting as agent for the Finance Parties, the Security Agent 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.
	 
	11.2	 	If information is received by another division or department of the Security Agent, it
may be treated as confidential to that division or department and the Security
Agent shall not be deemed to have notice of it.
	 
	11.3	 	Notwithstanding any other provision of any Finance Document to the contrary, the
Security Agent shall not be obliged to disclose to any other person (i) any
confidential information or (ii) any other information if the disclosure would or might
in its reasonable opinion constitute a breach of a fiduciary duty.
	 
	12	 	Relationship with the Lenders
	 
	12.1	 	The Security Agent may treat each Lender as a Lender, entitled to payments under
this Agreement and acting through its Facility Office unless it has received not less
than five Business Days prior notice from that Party or the Agent to the contrary.
	 
	13	 	Credit Appraisal
	 
	13.1	 	Without affecting the responsibility of any Obligor for information supplied by it or
on its behalf in connection with any Finance Document, each other Finance Party
confirms to the Security Agent 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:
	 
	13.1.1	 	the financial condition, status and nature of each member of the Group;
	 
	13.1.2	 	the legality, validity, effectiveness, adequacy or enforceability of any Finance
Document and the Transaction Security 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 Transaction Security;
	 
	13.1.3	 	whether that Finance Party has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or in connection




133









 






	 	 	with any Finance Document, the Transaction Security, 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;
	 
	13.1.4	 	the adequacy, accuracy and/or completeness of any information provided by the
Security Agent, any other Party or by any other person under or in connection with
any Finance Document, 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; and
	 
	13.1.5	 	the right or title of any person in or to, or the value or sufficiency of any part of the
Charged Property, the priority of any of the Transaction Security or the existence of
any Security affecting the Charged Property.
	 
	14	 	Deduction from Amounts Payable by the Security Agent
	 
	 	 	If any Party owes an amount to the Security Agent under the Finance Documents
the Security Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Security Agent
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.
	 
	15	 	Title
	 
	 	 	The Security Agent may accept without enquiry the title (if any) which an Obligor
may have to any asset over which Security is intended to be created by any
Transaction Security Document.
	 
	16	 	Holding
	 
	 	 	The Security Agent is not obliged to hold any share certificates or title deed, any
Transaction Security Document or other document in connection with any asset
over which Security is intended to be created by any Transaction Security
Documents in its own possession. The Security Agent may permit the relevant
Obligor, any professional adviser of the Security Agent or a custodian or nominee
to retain all such title deeds and other documents in its possession.
	 
	17	 	Investments
	 
	 	 	Prior to the application of the proceeds of the enforcement of the Transaction
Security in accordance with Clause 30.5 (Proceeds of enforcement) and except as
otherwise provided in any Transaction Security Document, all moneys which are
received by the Security Agent under that Transaction Security Document may be
invested in the name of or under the control of the Security Agent in any
investments which may be selected by the Security Agent. Additionally, those
moneys may be placed on deposit in the name of or under the control of the
Security Agent at such bank or institution (including itself) and upon such terms as
it may think fit.
	 
	18	 	Enforcement
	 
	 	 	The Security Agent shall to the extent practicable use all reasonable endeavours to
enforce the Security constituted by the Transaction Security Documents if it
receives instructions to do so from the relevant Finance Parties that comply with
Clause 27.20 (Instructions).






134












 






	19	 	Recoveries to be held on Trust
	 
	19.1	 	The Security Agent shall hold the Recoveries on trust for the Finance Parties.
	 
	19.2	 	The Recoveries shall be distributed between the Finance Parties in accordance
with Clause 30.5 (Proceeds of enforcement). Once so applied, the Security Agent
shall be under no obligation to monitor how the relevant person receiving any such
amount has applied such amounts.
	 
	19.3	 	Only amounts actually received by the Security Agent shall be capable of being
applied by the Security Agent in accordance with this paragraph 19.
	 
	19.4	 	If the Security Agent receives any distribution under this Agreement or any other
document otherwise than in cash from any person, the Security Agent may realise
such distribution as it sees fit and then shall apply the proceeds of such realisation
in accordance with the provisions of this Agreement.
	 
	19.5	 	If the Security Agent receives any amount under this Agreement or under any other
Finance Document in a currency other than the currency of the relevant debt the
Security Agent may convert such amount into the currency of the relevant debt at
the Security Agent’s spot rate of exchange for the purchase of the relevant
currency in the London foreign exchange market with the currency of the amount
received. The obligations of the Obligors to pay in the relevant currency shall only
be satisfied to the extent of the amount of the relevant currency purchased after
deducting the costs of conversion.
	 
	20	 	Payment of Taxes
	 
	 	 	The Security Agent shall be entitled to make such deductions and withholdings (on
account of Taxes or otherwise) from payments to any other Finance Party as it is
required by any applicable law to make and to pay out of amounts due to any other
Finance Party all Taxes assessed against it in respect of any property charged or
assigned pursuant to the Transaction Security Documents or by virtue of its role as
agent or trustee under the Finance Documents (except in connection with its
remuneration for performing its duties under this Agreement).
	 
	21	 	Discharge Date
	 
	 	 	Forthwith upon the date on which all present and future sums, obligations or
liabilities from time to time due, owing or incurred (actually or contingently) by any
Obligor to a Finance Party under or in connection with the Finance Documents
shall have been irrevocably discharged in full and all Commitments have been
cancelled, the trusts set out in Clause 27.18 (Appointment of Security Agent) and in
this Schedule 11 shall be wound up and all the rights, duties and obligations of the
Security Agent to the other Finance Parties (but not liabilities already incurred for
negligence or breach of duty) shall cease.




135









 











Schedule 12 Material Companies



Brampton Insurance Company Limited



Unione Italiana (UK) Reinsurance Co. Limited



River Thames Insurance Company Limited



Cavell Insurance Company Limited



Mercantile Indemnity Company Limited



Fieldmill Insurance Company Limited



Longmynd Insurance Company Limited



Hillcot Re Limited



Marlon Insurance Company Limited



Knapton Insurance Limited



Unionamerica Insurance Company Limited



Cumberland Holdings Limited



Courtenay Holdings Limited



Enstar Australia Holdings Pty Limited



AG Australia Holdings Limited



Gordian RunOff Limited



TGI Limited



Church Bay Limited



Guildhall Insurance Limited



EPIC Insurance Limited



Rosemont Re Limited





136









 








Schedule 13 Existing Security




Guarantors




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Security	 	 	 	 	 	 
	 	 	 	 	 	 	document	 	 	 	 	 	 
	 	 	 	 	 	 	registered at	 	 	 	 	 	 
	Company	 	Registered	 	Companies	 	Date	 	Date	 	Person
	Name	 	Number	 	House	 	created	 	registered	 	entitled
	Cavell Holdings
Limited

	 	 	1095628	 	 	Charge over
shares
	 	 	06.12.06	 	 	 	20.12.06	 	 	National
Australia Bank
Limited






Material
Companies —
Letter of  credit / ordinary
course security



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Security	 	 	 	 	 	 
	 	 	 	 	 	 	document	 	 	 	 	 	 
	 	 	 	 	 	 	registered at	 	 	 	 	 	 
	Company	 	Registered	 	Companies	 	Date	 	Date	 	Person
	Name	 	Number	 	House	 	created	 	registered	 	entitled
	Cavell Insurance
Company
Limited

	 	 	157661	 	 	Security
agreement
	 	 	17.12.92	 	 	 	30.12.92	 	 	Citibank N.A.
	 

	 	 	 	 	 	Amendment
letter
	 	 	15.02.94	 	 	 	22.02.94	 	 	Citibank N.A
	 

	 	 	 	 	 	Security
agreement
	 	 	30.03.98	 	 	 	08.04.98	 	 	Citibank N.A
	 

	 	 	 	 	 	Reinsurance
deposit
agreement
	 	 	30.03.98	 	 	 	14.04.98	 	 	Citibank N.A.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Marlon Insurance
Company
Limited

	 	 	998720	 	 	Security
agreement
	 	 	15.11.95	 	 	 	24.11.95	 	 	Citibank N.A.
	 

	 	 	 	 	 	Reinsurance
deposit
agreement
	 	 	15.11.95	 	 	 	24.11.95	 	 	Citibank N.A.
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	Longmynd
Insurance
Company
Limited

	 	 	1454023	 	 	Charge
	 	 	06.11.87	 	 	 	26.11.87	 	 	Citibank N.A.
	 
	Fieldmill
Insurance
Company
Limited

	 	 	1457354	 	 	Charge
	 	 	06.11.87	 	 	 	14.11.87	 	 	Citibank N.A
	 
	River Thames
Insurance
Company
Limited

	 	 	462838	 	 	Reinsurance
deposit
agreement
	 	 	11.07.88	 	 	 	20.07.88	 	 	Citibank N.A
	 

	 	 	 	 	 	Security
agreement
	 	 	11.07.88	 	 	 	20.07.88	 	 	Citibank N.A






137









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Security	 	 	 	 	 	 
	 	 	 	 	 	 	document	 	 	 	 	 	 
	 	 	 	 	 	 	registered at	 	 	 	 	 	 
	Company	 	Registered	 	Companies	 	Date	 	Date	 	Person
	Name	 	Number	 	House	 	created	 	registered	 	entitled
	 

	 	 	 	 	 	Security
agreement
	 	 	06.01.89	 	 	 	11.01.89	 	 	Citibank N.A
	 

	 	 	 	 	 	Security
agreement
	 	 	12.06.90	 	 	 	19.06.90	 	 	Citibank N.A
	 

	 	 	 	 	 	Security
agreement
	 	 	02.01.96	 	 	 	09.01.96	 	 	Citibank N.A
	 
	Brampton
Insurance
Company
Limited

	 	 	1272965	 	 	Reinsurance
deposit
agreement
	 	 	23.02.96	 	 	 	29.02.96	 	 	Citibank N.A.
	 
	Unione Italiana
(UK)
Reinsurance
Company
Limited

	 	 	199059	 	 	Charge
	 	 	02.12.87	 	 	 	09.12.87	 	 	Citibank N.A.
	 
	Hillcot Re
Limited

	 	 	1457317	 	 	Charge
	 	 	19.11.87	 	 	 	02.12.87	 	 	Citibank N.A.
	 
	Knapton
Insurance
Limited

	 	 	14644	 	 	Reinsurance
deposit
agreement
	 	 	25.09.09	 	 	 	12.10.09	 	 	Citibank N.A.
	 
	Gordian Runoff
Limited

	 	 	052179647	 	 	Fixed (ASIC
Charge No:
373330)
	 	 	30.12.92	 	 	 	25.01.93	 	 	004325080,
Citigroup Pty
Limited
	 

	 	 	 	 	 	Fixed (ASIC
Charge No:
1344254)
	 	 	16.08.06	 	 	 	25.08.06	 	 	004325080,
Citigroup Pty
Limited
	 

	 	 	 	 	 	Fixed (ASIC
Charge No:
1344258)
	 	 	16.08.06	 	 	 	25.08.06	 	 	079478612. The
Royal Bank of
Scotland N.V.
	 

	 	 	 	 	 	Fixed (ASIC
Charge No:
1344262)
	 	 	16.08.06	 	 	 	25.08.06	 	 	079478612. The
Royal Bank of
Scotland N.V.
	 

	 	 	 	 	 	Floating (ASIC
Charge No:
373432)
	 	 	21.12.92	 	 	 	27.01.93	 	 	064874531,
Bank of
America,
National
Association
	 

	 	 	 	 	 	Fixed (ASIC
Charge No: 510034)
	 	 	13.09.95	 	 	 	04.10.95	 	 	064874531,
Bank of
America,
National
Association






138









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Security	 	 	 	 	 	 
	 	 	 	 	 	 	document	 	 	 	 	 	 
	 	 	 	 	 	 	registered at	 	 	 	 	 	 
	Company	 	Registered	 	Companies	 	Date	 	Date	 	Person
	Name	 	Number	 	House	 	created	 	registered	 	entitled
	Enstar Australia
Holdings Pty
Limited

	 	 	128812546	 	 	Fixed (ASIC
Charge No:
1596644)
	 	 	28.02.08	 	 	 	29.02.08	 	 	004044937, National
Australia Bank
Limited
	 
	AG Australia
Holdings Limited

	 	 	054573401	 	 	Fixed (ASIC
Charge No:
1614223)
	 	 	25.03.08	 	 	 	03.04.08	 	 	004044937, National Australia Bank Limited






139









 






Schedule 14 Permitted Transfers





	1.	 	The proposed transfer of a portfolio of business from International Insurance Company of
Hannover Limited to Brampton Insurance Company Limited by way of a part VII transfer.
	 
	2.	 	The proposed transfer of a portfolio of business from Compagnie Europeene
d’Assurances Industrielles (CEAI) to River Thames Insurance Company Limited by way
of a Belgian law portfolio transfer.
	 
	3.	 	The proposed transfer of all of Harper Insurance Limited’s UK branch business to
Mercantile Indemnity Company Limited, by way of a part VII transfer.
	 
	4.	 	The proposed transfer of a portfolio of assumed reinsurance business from Allianz Global
Corporate & Specialty AG (UK Branch) and Allianz SE to Knapton Insurance Limited, by
way of German law portfolio transfers.
	 
	5.	 	The proposed transfer by Church Bay Limited of its business to a QBE entity, by way
of
an Australian law portfolio transfer.






140











 





SIGNATURES




THE PARENT




	 	 	 	 	 
	 	Enstar Group Limited

 	 
	 	By:  /s/ Richard J. Harris
 	 
	 	 	 	 
	 	Address:




Fax:

Attention:  	        Windsor Place

18 Queen Street

Hamilton

Bermuda HM 11





            001 441 296 0895




     Richard Harris 	 
	 



	 	 	 	 	 
	 	THE ORIGINAL GUARANTORS



Enstar Group Limited

 	 
	 	By:  /s/ Richard J. Harris
 	 
	 	 	 	 
	 	Address:




Fax:

Attention:  	        Windsor Place

18 Queen Street

Hamilton

Bermuda HM 11





            001 441 296 0895




     Richard Harris 	 
	 



	 	 	 	 	 
	 	Hillcot Holdings Ltd

 	 
	 	By:  /s/ Richard J. Harris
 	 
	 
	 	Address:




Fax:

Attention:  	        Windsor Place

18 Queen Street

Hamilton

Bermuda HM 11





            001 441 296 0895




     Richard Harris 	 



141









 







	 	 	 	 	 
	 	Virginia Holdings Ltd

 	 
	 	By:  	/s/ Richard J. Harris
 	 
	 	 	 	 
	 	Address: 









Fax:




Attention: 	        Windsor Place

18 Queen Street

Hamilton

Bermuda HM 11



            001 441 296 0895




      Richard Harris 	 
	 
	 
	 	Revir Ltd

 	 
	 	By:  	/s/ Richard J. Harris
 	 
	 	 	 	 
	 	Address: 









Fax:




Attention: 	        Windsor Place

18 Queen Street

Hamilton

Bermuda HM 11



            001 441 296 0895



      Richard Harris 	 
	 
	 
	 	Cavell Holdings Limited

 	 
	 	By:  	/s/ Alan Turner
 	 
	 
	 	Address: 









Fax:




Attention: 	        Avaya House 

2 Cathedral Hill

Guildford

Surrey GU2 7YL



           +44(0)1483 452644



      Gareth Nokes 	 
	 
	 
	 	Kenmare Holdings Ltd

 	 
	 	By:  	/s/ Richard J. Harris
 	 
	 	 	 	 
	 	Address: 









Fax:




Attention: 	     Windsor Place

18 Queen Street

Hamilton

Bermuda HM 11



            001 441 296 0895



      Richard Harris 	 



142









 







	 	 	 	 	 
	 	Flatts Limited

 	 
	 	By: /s/ Alan Turner
 	 
	 	 	 	 
	 	Address: 	Avaya House
 	 
	 	 	
2 Cathedral Hill

Guildford

Surrey GU2 7YL





	 
	 	Fax: 	+44 (0)1483 452644

 	 
	 	Attention: 	      Gareth Nokes 
 	 



	 	 	 	 	 
	 	Knapton Holdings Limited

 	 
	 	     By: /s/ Alan Turner
 	 
	 	 	 	 
	 	Address: 	Avaya House
 	 
	 	 	
2 Cathedral Hill

Guildford

Surrey GU2 7YL






      	 
	 	Fax: 	+44 (0)1483 452644


 	 
	 	Attention: 	Gareth Nokes 
 	 



	 	 	 	 	 
	 	THE ORIGINAL LENDERS





National Australia Bank Limited (ABN 12 004 440 937)

 	 
	 	By: /s/ Ray Catt
 	 
	 	      Managing Director 	 
	 
	 	Address: 	88 Wood Street
 	 
	 	 	
London

EC2V 7QQ




      	 
	 	Fax: 	+44 (0) 20 7410 0297


 	 
	 	Attention: 	Ray Catt/Andrew Lloyd 
 	 



	 	 	 	 	 
	 	Barclays Bank PLC

 	 
	 	By: /s/ John Atkinson
 	 
	 	      John Atkinson 	 
	 
	 	Address: 	Barclays Corporate
 	 
	 	 	
Level 11

1 Churchill Place

Canary Wharf

London

EC 14 5HP


	 



143









 






	 	 	 	 	 



	 	 	 	 	 
	 	THE ARRANGERS





National Australia Bank Limited (ABN 12 004 044 937)


	 	By:  	/s/ Ray Catt
 	 
	 	 	Managing Director 	 
	 
	 	Address:



 Fax:

 Attention: 	        88 Wood Street

London

EC2V 7QQ



           +44 (0) 20 7410 0297



      Ray Catt/Andrew Lloyd 	 
	 



	 	 	 	 	 
	 	Barclays Corporate

 	 
	 	By:  	/s/ John Atkinson
 	 
	 	 	John Atkinson 	 
	 
	 	Address:






   Fax:

  Attention: 	        Barclays Corporate

Level 28

1 Churchill Place

Canary Wharf

London

EC145HP



            +44 (0) 20 7116 7636


      John Atkinson

Transaction Management, Debt Finance, Barclays Corporate 
	 



	 	 	 	 	 
	 	THE AGENT





National Australia Bank Limited (ABN 12 004 044 937)


	 	By:  	/s/ Ray Catt
 	 
	 	 	Managing Director 	 
	 
	 	Address:



 Fax:

  Attention: 	        88 Wood Street

London

EC2V 7QQ



            +44(0) 20 7410 0297



:      Carole Palmer 	 



144









 







	 	 	 	 	 



	 	 	 	 	 
	 	THE SECURITY AGENT





National Australia Bank Limited (ABN 12 004 044 937)



	 	By:  	/s/ Ray Catt
 	 
	 	 	Managing Director 	 
	 
	 	 Address: 	        88 Wood Street

London

EC2V 7QQ


 	 
	 	 Fax:	
            +44 (0) 20 7410 0297



 	 
	 	Attention:  	


      Carole Palmer 	 
	 




145