exv10w1



 






Exhibit 10.1


EXECUTION VERSION



 




Dated 19 December 2005




TERM FACILITY AGREEMENT




US$160,000,000




FACILITY AGREEMENT




for




CASTLEWILDER

as Borrower




arranged by




BANC OF AMERICA SECURITIES LLC




with




BANK OF AMERICA, N.A.

acting as Administrative Agent




 





WHITE & CASE

5 Old Broad Street

London EC2N 1DW




 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	Clause
	 	Page
	1.	 	DEFINITIONS AND INTERPRETATION
	 	 	1	 
	 	 	1.1 Definitions
	 	 	1	 
	 	 	1.2 Construction
	 	 	11	 
	 	 	1.3 Third party rights
	 	 	12	 
	 	 	 
	 	 	 	 
	2.	 	THE FACILITY
	 	 	13	 
	 	 	2.1 The Facility
	 	 	13	 
	 	 	2.2 [Reserved]
	 	 	13	 
	 	 	2.3 Finance Parties’ Rights and Obligations
	 	 	13	 
	 	 	 
	 	 	 	 
	3.	 	PURPOSE
	 	 	13	 
	 	 	3.1 Purpose
	 	 	13	 
	 	 	3.2 Monitoring
	 	 	13	 
	 	 	 
	 	 	 	 
	4.	 	CONDITIONS OF UTILISATION
	 	 	13	 
	 	 	4.1 Initial conditions precedent
	 	 	13	 
	 	 	4.2 Further conditions precedent
	 	 	14	 
	 	 	 
	 	 	 	 
	5.	 	UTILISATION
	 	 	14	 
	 	 	5.1 Delivery of a Utilisation Request
	 	 	14	 
	 	 	5.2 Completion of a Utilisation Request
	 	 	14	 
	 	 	5.3 Currency and amount
	 	 	14	 
	 	 	5.4 Lenders’ participation
	 	 	15	 
	 	 	 
	 	 	 	 
	6.	 	REPAYMENT
	 	 	15	 
	 	 	6.1 Repayment of the Loan
	 	 	15	 
	 	 	6.2 Reborrowing
	 	 	15	 
	 	 	 
	 	 	 	 
	7.	 	PREPAYMENT AND CANCELLATION
	 	 	16	 
	 	 	7.1 Illegality
	 	 	16	 
	 	 	7.2 Voluntary Prepayment of the Loan
	 	 	16	 
	 	 	7.3 Right of Repayment and Cancellation in Relation to a Single Lender
	 	 	16	 
	 	 	7.4 Restrictions
	 	 	17	 
	 	 	7.5 Extension of Maturity Date
	 	 	17	 
	 	 	 
	 	 	 	 
	8.	 	INTEREST
	 	 	18	 
	 	 	8.1 Calculation of Interest
	 	 	18	 
	 	 	8.2 Payment of Interest
	 	 	18	 
	 	 	8.3 Margin Adjustment
	 	 	18	 
	 	 	8.4 Default Interest
	 	 	19	 
	 	 	8.5 Notification of Rates of Interest
	 	 	19	 
	 	 	 
	 	 	 	 
	9.	 	INTEREST PERIODS; CONVERSIONS
	 	 	20	 
	 	 	9.1 Selection of Interest Periods
	 	 	20	 
	 	 	9.2 Conversions
	 	 	20	 
	 	 	9.3 Non-Business Days
	 	 	20	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	Clause
	 	Page
	10.	 	CHANGES TO THE CALCULATION OF INTEREST
	 	 	21	 
	 	 	10.1 [Reserved]
	 	 	21	 
	 	 	10.2 Market disruption
	 	 	21	 
	 	 	10.3 Alternative Basis of Interest or Funding
	 	 	21	 
	 	 	10.4 Break Costs
	 	 	21	 
	 	 	 
	 	 	 	 
	11.	 	FEES
	 	 	22	 
	 	 	11.1 Upfront Fee
	 	 	22	 
	 	 	11.2 Arrangement Fee
	 	 	22	 
	 	 	11.3 Agency Fee
	 	 	22	 
	 	 	 
	 	 	 	 
	12.	 	TAX GROSS UP AND INDEMNITIES
	 	 	22	 
	 	 	12.1 Definitions
	 	 	22	 
	 	 	12.2 Tax Gross-Up
	 	 	23	 
	 	 	12.3 Tax Indemnity
	 	 	23	 
	 	 	12.4 Tax Credit
	 	 	24	 
	 	 	12.5 Stamp Taxes
	 	 	25	 
	 	 	12.6 Value Added Tax
	 	 	25	 
	 	 	 
	 	 	 	 
	13.	 	INCREASED COSTS
	 	 	25	 
	 	 	13.1 Increased Costs
	 	 	25	 
	 	 	13.2 Increased Cost Claims
	 	 	26	 
	 	 	13.3 Exceptions
	 	 	26	 
	 	 	 
	 	 	 	 
	14.	 	OTHER INDEMNITIES
	 	 	26	 
	 	 	14.1 Currency Indemnity
	 	 	26	 
	 	 	14.2 Other Indemnities
	 	 	27	 
	 	 	14.3 Indemnity to the Administrative Agent
	 	 	28	 
	 	 	 
	 	 	 	 
	15.	 	MITIGATION BY THE LENDERS
	 	 	28	 
	 	 	15.1 Mitigation
	 	 	28	 
	 	 	15.2 Limitation of Liability
	 	 	28	 
	 	 	 
	 	 	 	 
	16.	 	COSTS AND EXPENSES
	 	 	28	 
	 	 	16.1 Transaction Expenses
	 	 	28	 
	 	 	16.2 Amendment Costs
	 	 	29	 
	 	 	16.3 Enforcement Costs
	 	 	29	 
	 	 	 
	 	 	 	 
	17.	 	REPRESENTATIONS AND WARRANTIES
	 	 	29	 
	 	 	17.1 Corporate Existence and Status
	 	 	29	 
	 	 	17.2 Binding Obligations
	 	 	30	 
	 	 	17.3 Non-conflict with other Obligations
	 	 	30	 
	 	 	17.4 Power and Authority
	 	 	30	 
	 	 	17.5 Governmental Authorisation and Other Consents
	 	 	30	 
	 	 	17.6 Validity and Admissibility in Evidence
	 	 	30	 
	 	 	17.7 [Reserved]
	 	 	31	 
	 	 	17.8 No Filing or Stamp Taxes
	 	 	31	 
	 	 	17.9 No Default
	 	 	31	 






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(continued)




	 	 	 	 	 	 	 
	Clause
	 	Page
	 	 	17.10 No Misleading Information
	 	 	31	 
	 	 	17.11 Financial Statements
	 	 	32	 
	 	 	17.12 Margin Regulations
	 	 	32	 
	 	 	17.13 Ownership of Property and Security
	 	 	32	 
	 	 	17.14 Taxes
	 	 	32	 
	 	 	17.15 Material Subsidiaries; Equity Interests
	 	 	33	 
	 	 	17.16 Compliance with Laws
	 	 	33	 
	 	 	17.17 Pari Passu Ranking
	 	 	33	 
	 	 	17.18 No Proceedings Pending or Threatened
	 	 	33	 
	 	 	17.19 Guaranties
	 	 	33	 
	 	 	 
	 	 	 	 
	18.	 	INFORMATION UNDERTAKINGS
	 	 	33	 
	 	 	18.1 Notification of Default
	 	 	34	 
	 	 	18.2 “Know Your Customer” Checks
	 	 	34	 
	 	 	 
	 	 	 	 
	19.	 	[RESERVED]
	 	 	35	 
	 	 	 
	 	 	 	 
	20.	 	GENERAL UNDERTAKINGS
	 	 	35	 
	 	 	20.1 Authorisations
	 	 	35	 
	 	 	20.2 Compliance with Laws and Contractual Obligations
	 	 	35	 
	 	 	20.3 Negative Pledge
	 	 	35	 
	 	 	20.4 Disposals
	 	 	37	 
	 	 	20.5 Change of Business
	 	 	38	 
	 	 	20.6 Payment of Obligations
	 	 	38	 
	 	 	20.7 Preservation of Existence
	 	 	38	 
	 	 	20.8 Books and Records
	 	 	39	 
	 	 	20.9 [Reserved]
	 	 	39	 
	 	 	20.10 Use of Proceeds
	 	 	39	 
	 	 	20.11 Transactions with Affiliates
	 	 	39	 
	 	 	20.12 Governing Law and Enforcement
	 	 	39	 
	 	 	 
	 	 	 	 
	21.	 	EVENTS OF DEFAULT
	 	 	40	 
	 	 	21.1 Non-payment
	 	 	40	 
	 	 	21.2 Other Obligations
	 	 	40	 
	 	 	21.3 Misrepresentation
	 	 	40	 
	 	 	21.4 Insolvency
	 	 	40	 
	 	 	21.5 Insolvency Proceedings
	 	 	40	 
	 	 	21.6 Creditors’ Process
	 	 	41	 
	 	 	21.7 Ownership of the Borrower and CTL
	 	 	41	 
	 	 	21.8 Unlawfulness
	 	 	41	 
	 	 	21.9 Guaranty Default
	 	 	41	 
	 	 	21.10 Acceleration
	 	 	42	 
	 	 	 
	 	 	 	 
	22.	 	CHANGES TO THE LENDERS
	 	 	42	 
	 	 	22.1 Assignments and Transfers by the Lenders
	 	 	42	 
	 	 	22.2 Conditions of Assignment or Transfer
	 	 	42	 
	 	 	22.3 Assignment or Transfer Fee
	 	 	43	 






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(continued)




	 	 	 	 	 	 	 
	Clause
	 	Page
	 	 	22.4 Limitation of Responsibility of Existing Lenders
	 	 	44	 
	 	 	22.5 Procedure for Transfer
	 	 	45	 
	 	 	22.6 Copy of Transfer Certificate to Borrower
	 	 	46	 
	 	 	22.7 Disclosure of Information
	 	 	46	 
	 	 	22.8 Participations
	 	 	46	 
	 	 	22.9 Limitations upon Participant Rights
	 	 	47	 
	 	 	 
	 	 	 	 
	23.	 	ROLE OF THE ADMINISTRATIVE AGENT AND THE ARRANGER
	 	 	47	 
	 	 	23.1 Appointment of the Administrative Agent
	 	 	47	 
	 	 	23.2 Duties of the Administrative Agent
	 	 	47	 
	 	 	23.3 Role of the Arranger
	 	 	48	 
	 	 	23.4 No Fiduciary Duties
	 	 	48	 
	 	 	23.5 Business with the Group
	 	 	48	 
	 	 	23.6 Rights and Discretions of the Administrative Agent
	 	 	48	 
	 	 	23.7 Majority Lenders’ Instructions
	 	 	49	 
	 	 	23.8 Responsibility for Documentation
	 	 	50	 
	 	 	23.9 Exclusion of Liability
	 	 	50	 
	 	 	23.10 Lenders’ Indemnity to the Administrative Agent
	 	 	50	 
	 	 	23.11 Resignation of the Administrative Agent
	 	 	51	 
	 	 	23.12 Confidentiality
	 	 	51	 
	 	 	23.13 Relationship with the Lenders
	 	 	52	 
	 	 	23.14 Credit Appraisal by the Lenders
	 	 	52	 
	 	 	23.15 [Reserved]
	 	 	52	 
	 	 	23.16 [Reserved]
	 	 	52	 
	 	 	23.17 Deduction from Amounts Payable by the Administrative Agent
	 	 	52	 
	 	 	 
	 	 	 	 
	24.	 	CONDUCT OF BUSINESS BY THE FINANCE PARTIES
	 	 	53	 
	 	 	 
	 	 	 	 
	25.	 	SHARING AMONG THE FINANCE PARTIES
	 	 	53	 
	 	 	25.1 Payments to Finance Parties
	 	 	53	 
	 	 	25.2 Redistribution of Payments
	 	 	53	 
	 	 	25.3 Recovering Finance Party’s Rights
	 	 	54	 
	 	 	25.4 Reversal of Redistribution
	 	 	54	 
	 	 	25.5 Exceptions
	 	 	54	 
	 	 	 
	 	 	 	 
	26.   PAYMENT MECHANICS	 	 	55	 
	 	 	26.1 Payments to the Administrative Agent
	 	 	55	 
	 	 	26.2 Distributions by the Administrative Agent
	 	 	55	 
	 	 	26.3 Distributions to an Obligor
	 	 	55	 
	 	 	26.4 Clawback
	 	 	55	 
	 	 	26.5 Partial Payments
	 	 	56	 
	 	 	26.6 No Set-off by the Borrower
	 	 	56	 
	 	 	26.7 Business Days
	 	 	56	 
	 	 	26.8 Currency of Account
	 	 	56	 
	 	 	26.9 Change of Currency
	 	 	57	 






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(continued)




	 	 	 	 	 	 	 
	Clause
	 	Page
	27.	 	SET-OFF
	 	 	57	 
	 	 	 
	 	 	 	 
	28.	 	NOTICES
	 	 	57	 
	 	 	28.1 Communications in Writing
	 	 	57	 
	 	 	28.2 Addresses
	 	 	58	 
	 	 	28.3 Delivery
	 	 	58	 
	 	 	28.4 Notification of Address and Fax Number
	 	 	59	 
	 	 	28.5 Electronic Communication
	 	 	59	 
	 	 	28.6 English Language
	 	 	59	 
	 	 	 
	 	 	 	 
	29.	 	CALCULATIONS AND CERTIFICATES
	 	 	60	 
	 	 	29.1 Accounts
	 	 	60	 
	 	 	29.2 Certificates and Determinations
	 	 	60	 
	 	 	29.3 Day Count Convention
	 	 	60	 
	 	 	 
	 	 	 	 
	30.	 	PARTIAL INVALIDITY
	 	 	60	 
	 	 	 
	 	 	 	 
	31.	 	REMEDIES AND WAIVERS
	 	 	60	 
	 	 	 
	 	 	 	 
	32.	 	AMENDMENTS AND WAIVERS
	 	 	60	 
	 	 	32.1 Required Consents
	 	 	60	 
	 	 	32.2 Exceptions
	 	 	61	 
	 	 	 
	 	 	 	 
	33.	 	COUNTERPARTS
	 	 	61	 
	 	 	 
	 	 	 	 
	34.	 	GOVERNING LAW
	 	 	61	 
	 	 	 
	 	 	 	 
	35.	 	ENFORCEMENT
	 	 	61	 
	 	 	35.1 Jurisdiction
	 	 	61	 
	 	 	35.2 Service of Process
	 	 	63	 
	 	 	 
	 	 	 	 
	36.	 	USA PATRIOT ACT NOTICE
	 	 	63	 






	 	 	 	 	 
	SCHEDULE 1 THE ORIGINAL PARTIES
	 	 	64	 
	SCHEDULE 2 CONDITIONS PRECEDENT
	 	 	66	 
	SCHEDULE 3 REQUESTS AND NOTICES
	 	 	69	 
	SCHEDULE 4 MANDATORY COST FORMULA
	 	 	71	 
	SCHEDULE 5 FORM OF TRANSFER CERTIFICATE
	 	 	74	 
	SCHEDULE 6 EXISTING SECURITY
	 	 	76	 
	SCHEDULE 7 MATERIAL SUBSIDIARIES AND EQUITY INTERESTS
	 	 	77	 
	SCHEDULE 8 FORM OF PARENT GUARANTY
	 	 	78	 
	SCHEDULE 9 FORM OF CTL GUARANTY
	 	 	79	 
	SIGNATORIES
	 	 	1	 






(v)









 





THIS TERM FACILITY AGREEMENT (this “Agreement”) is dated 19 December 2005 and made between:





	(1)	 	CASTLEWILDER, an Irish unlimited company having its registered office at Wilton Place Dublin
2, Ireland and with company no. 260382 (the “Borrower”);
	 
	(2)	 	BANC OF AMERICA SECURITIES LLC as mandated lead arranger (the “Arranger”);
	 
	(3)	 	THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 as lenders (the “Original
Lenders”);
	 
	(4)	 	BANK OF AMERICA, N.A. as Administrative Agent of the other Finance Parties (the
“Administrative Agent”); and
	 
	(5)	 	JPMORGAN CHASE BANK, N.A. as Syndication Agent; and
	 
	(6)	 	BNP PARIBAS, as Documentation Agent.




IT IS AGREED as follows:




SECTION 1

INTERPRETATION





	1.	 	DEFINITIONS AND INTERPRETATION






	1.1	 	Definitions






	 	 	In this Agreement:
	 
	 	 	“Additional Cost Rate” has the meaning given to it in Schedule 4 (Mandatory Cost Formula).
	 
	 	 	“Affiliate” means, in relation to any person, a Subsidiary of that person or a Holding
Company of that person or any other Subsidiary of that Holding Company.
	 
	 	 	“Applicable Percentage” means, in respect of any Lender (a) at any time on or before the
Utilisation Date, the percentage that such Lender’s Commitment bears to the Total
Commitments, and (b) at any time after the Utilisation Date, the percentage that such
Lender’s participation in the principal amount of the Loan then outstanding bears to the
total principal amount of the Loan then outstanding.
	 
	 	 	“Approved Fund” means any Fund that is administered or managed by:






	 	(a)	 	a Lender;
	 
	 	(b)	 	an Affiliate of a Lender; or




 









 






	 	(c)	 	an entity or an Affiliate of an entity that administers or manages a Lender.






	 	 	“Arranger” means Banc of America Securities LLC, in its capacity as sole lead arranger and
sole book manager.
	 
	 	 	“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or
two or more Approved Funds managed by the same investment adviser.
	 
	 	 	“Authorisation” means an authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation or registration.
	 
	 	 	“Available Facility” means the aggregate for the time being of each Lender’s Commitment.
	 
	 	 	“Bank of America” means Bank of America, N.A., in its individual capacity.
	 
	 	 	“Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day as
publicly announced from time to time by Bank of America as its “prime rate.” The “prime
rate” is a rate set by Bank of America based upon various factors including Bank of
America’s costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall take effect
at the opening of business on the day specified in the public announcement of such change.
	 
	 	 	“Base Rate Loan” means the Loan, at any time as it accrues interest based on the Base Rate.
	 
	 	 	“Break Costs” means the amount (if any) by which:






	 	(a)	 	the interest which a Lender should have received for the period from the date
of receipt of all or any part of its participation in the Loan or Unpaid Sum to the
last day of the current Interest Period in respect of the 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 Relevant 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.





2









 











	 	 	“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for
general business in London, Dublin, Ireland, New York City and San Francisco, California.
	 
	 	 	“Closing Date” means the date on which all the conditions precedent to Utilisation specified
in Schedule 2 hereto are met or waived.
	 
	 	 	“Commitment” means:






	 	(a)	 	in relation to an Original Lender, the amount set opposite its name under the
heading “ Commitment” in Part II 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 of any Commitment transferred to it
under this Agreement,






	 	 	to the extent not cancelled, reduced or transferred by it under this Agreement.
	 
	 	 	“Confidentiality Undertaking” means a confidentiality undertaking in such form as agreed
between the Guarantors and the Administrative Agent.
	 
	 	 	“CTL” has the meaning given to it in the definition of “Guarantors”.
	 
	 	 	“Default” means an Event of Default or any event or circumstance specified in Clause 21
(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.
	 
	 	 	“Dollars” or “$” means the lawful currency of the United States of America.
	 
	 	 	“Eligible Assignee” means:






	 	(a)	 	an Existing Lender;
	 
	 	(b)	 	an Affiliate of an Existing Lender;
	 
	 	(c)	 	an Approved Fund; and
	 
	 	(d)	 	any other person (other than a natural person) approved by:






	 	(i)	 	the Administrative Agent; and
	 
	 	(ii)	 	unless an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed),
provided that notwithstanding the foregoing, “Eligible Assignee” shall not
include the Borrower or any of the Borrower’s Affiliates or Subsidiaries.




3









 












	 	 	“Equity Interests” means, with respect to any person, all of the shares of capital stock (or
other ownership or profit interests) in such person, all of the warrants, options or other
rights for the purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such person, all of the securities convertible into
or exchangeable for shares of capital stock of (or other ownership or profit interests in)
such person or warrants, rights or options for the purchase or acquisition from such person
of such shares (or such other interests) and all of the other ownership or profit interests
in such Person (including partnership, member or trust interests therein), whether voting or
non-voting, and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
	 
	 	 	“Eurodollar Base Rate” has the meaning set forth in the definition of “LIBOR”.
	 
	 	 	“Event of Default” means any event or circumstance specified as such in Clause 21 (Events of
Default).
	 
	 	 	“Existing Lender” has the meaning given to it in Clause 22.1 (Assignments and Transfers by
the Lenders).
	 
	 	 	“Extended Maturity Date” has the meaning given to it in Clause 7.5 (Extension of Maturity
Date).
	 
	 	 	“Extension Option” has the meaning given to it in Clause 7.5 (Extension of Maturity Date).
	 
	 	 	“Facility” means the term loan facility made available under this Agreement as described in
Clause 2 (The Facility).
	 
	 	 	“Facility Office” means the office or offices notified by a Lender to the Administrative
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.
	 
	 	 	“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided, however, that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next succeeding
Business Day, and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary,
to a whole multiple of 1/100 of 1%) charged to Bank of America, N.A. on such day on such
transactions as determined by the Administrative Agent.




4









 






	 	 	“Fee Letter” means the fee letter dated 22 November 2005 among the Administrative Agent, the
Arranger and the Borrower setting out any of the fees referred to in Clause 11 (Fees).
	 
	 	 	“Final Maturity Date” means:






	 	(a)	 	if the Extension Option is not exercised in accordance with Clause 7.5
(Extension of Maturity Date), the Initial Maturity Date; and
	 
	 	(b)	 	if the Extension Option is exercised in accordance with Clause 7.5 (Extension
of Maturity Date) the Extended Maturity Date.






	 	 	“Finance Document” means this Agreement, the Fee Letter, the Guaranties and any other
document designated as such by the Administrative Agent and the Borrower.
	 
	 	 	“Finance Party” means the Administrative Agent, the Arranger or a Lender.
	 
	 	 	“Financial Indebtedness” means any indebtedness for or in respect of:






	 	(a)	 	moneys borrowed;
	 
	 	(b)	 	any amount raised by acceptance under any acceptance credit facility or
dematerialised equivalent;
	 
	 	(c)	 	any amount raised pursuant to any note purchase facility or the issue of bonds,
notes, debentures, loan stock or any similar instrument;
	 
	 	(d)	 	the amount of any liability in respect of any lease or hire purchase contract
which would, in accordance with GAAP-IR, be treated as a finance or capital lease;
	 
	 	(e)	 	receivables sold or discounted (other than any receivables to the extent they
are sold or discounted on a non-recourse basis);
	 
	 	(f)	 	any amount raised under any other transaction (including any forward sale or
purchase agreement) having the commercial effect of a borrowing;
	 
	 	(g)	 	any derivative transaction entered into in connection with protection against
or benefit from fluctuation in any rate or price (and, when calculating the value of
any derivative transaction, only the marked to market value shall be taken into
account);
	 
	 	(h)	 	any counter-indemnity Obligation in respect of a guarantee, indemnity, bond,
standby or documentary letter of credit or any other instrument issued by a bank or
financial institution; and
	 
	 	(i)	 	the amount of any liability in respect of any guarantee or indemnity for any of
the items referred to in paragraphs (a) to (h) above.




5









 












	 	 	“FRB” means the Board of Governors of the Federal Reserve System of the United States of
America.
	 
	 	 	“Fund” means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
	 
	 	 	“GAAP-IR” means generally accepted accounting principles in the Republic of Ireland.
	 
	 	 	“Governmental Authority” means the government of the United States of America, The Republic
of Ireland or any other nation, or of any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including any
supra-national bodies such as the European Union or the European Central Bank).
	 
	 	 	“Group” means the Parent and its Subsidiaries for the time being.
	 
	 	 	“Guaranties” means the guaranties dated 19 December 2005 given by each of the Parent and CTL
in favour of the Administrative Agent (for and on behalf of the Finance Parties),
substantially in the form of Schedule 8 and Schedule 9 (the “Parent Guaranty” and the “CTL
Guaranty” respectively).
	 
	 	 	“Guarantors” means Cadence Design Systems, Inc. a Delaware corporation having its principal
place of business at 2655 Seely Avenue, Building 5, San Jose, California 95134 (the
“Parent”) and Cadence Technology Limited, an Irish private limited company (company no.
261724) having its registered office at Wilton Place, Dublin 2, Ireland (“CTL”).
	 
	 	 	“Holding Company” means, in relation to a company or corporation, any other company or
corporation in respect of which it is a Subsidiary.
	 
	 	 	“Initial Loan Amount” means the principal amount of the Loan made by the Lenders on the
Utilisation Date.
	 
	 	 	“Initial Maturity Date” means 31 December 2008.
	 
	 	 	“Information Memorandum” means the document dated 29 November 2005 and described as an
offering memorandum in the form approved by the Parent concerning the Group which, at the
Borrower’s request and on its behalf, was prepared in relation to this transaction and
distributed by the Arranger to selected financial institutions before the date of this
Agreement.
	 
	 	 	“Interest Period” means, in relation to the LIBOR Loan, each period determined in accordance
with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined
in accordance with Clause 8.4 (Default Interest).




6









 






	 	 	“Lender” means:






	 	(a)	 	any Original Lender; and
	 
	 	(b)	 	any bank, financial institution, trust, fund or other entity which has become a
Party in accordance with Clause 22 (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, for any Interest Period with respect to the Loan, a rate per annum determined
by the Administrative Agent pursuant to the following formula:





	 	 	 	 
	LIBOR =

	 	Eurodollar Base Rate
	 	

	 	1.00 – Eurodollar Reserve Percentage







	 	 	Where,






	 	 	 	“Eurodollar Base Rate” means, for such Interest Period, the rate per annum equal to
the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or other commercially available source providing quotations of BBA LIBOR as
designated by the Administrative Agent from time to time) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Interest
Period, for Dollar deposits (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period. If such rate is not available at
such time for any reason, then the “Eurodollar Base Rate” for such Interest Period
shall be the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the LIBOR Loan being made, continued or
converted and with a term equivalent to such Interest Period would be offered by
Bank of America’s London Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
	 
	 	 	 	“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in
effect on such day, whether or not applicable to any Lender, under regulations
issued from time to time by the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as “Eurocurrency
liabilities”). LIBOR shall be adjusted automatically as of the effective date of
any change in the Eurodollar Reserve Percentage.






	 	 	“LIBOR Loan” means the Loan, at any time as it accrues interest based on LIBOR.




7









 












	 	 	“Loan” means the loan made or to be made under the Facility or the principal amount
outstanding for the time being of that loan.
	 
	 	 	“Majority Lenders” means at any time, a Lender or group of Lenders whose Applicable
Percentages aggregate to more than 50%.
	 
	 	 	“Mandatory Cost” means the percentage per annum calculated by the Administrative Agent in
accordance with Schedule 4 (Mandatory Cost Formula).
	 
	 	 	“Margin” means, as to a LIBOR Loan, 0.625 per cent. per annum, and, as to a Base Rate Loan,
0 per cent. per annum, subject to the provisions of Clause 8.3 (Margin Adjustment).
	 
	 	 	“Market Disruption Event” has the meaning given to it in Clause 10.2(b) (Market Disruption).
	 
	 	 	“Material Adverse Effect” means:






	 	(a)	 	a material adverse change in, or a material adverse effect upon, the
operations, business, properties, liabilities, condition (financial or otherwise) of
the Borrower, or the Parent and its Subsidiaries taken as a whole;
	 
	 	(b)	 	a material impairment of the ability of any Obligor to perform its obligations
under any Finance Document to which it is a party; or
	 
	 	(c)	 	a material adverse effect upon the legality, validity, binding effect or
enforceability against any Obligor of any Finance Document to which it is a party.






	 	 	“Material Subsidiary” means, in respect of Subsidiaries of the Borrower at any time of
determination, (i) any Subsidiary that would be a “Material Subsidiary” as defined in the
Parent Guaranty at such time, and (ii) any Subsidiary that at such time, based upon the most
recent financial statements of the Parent delivered to the Administrative Agent and the
Lenders pursuant to the Parent Guaranty, has total assets exceeding 10% of the consolidated
total assets of the Borrower and its Subsidiaries as determined in accordance with GAAP-IR.
	 
	 	 	“Maturity Extension Date” means, provided an Extended Maturity Date has arisen, the Initial
Maturity Date.
	 
	 	 	“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;




8









 






	 	(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
	 
	 	(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.
	 
	 	 	“Obligation” means any obligation for the payment or repayment of Financial Indebtedness
(whether such obligation is present or future, contingent or otherwise, or as principal or
surety or otherwise).
	 
	 	 	“Obligors” means the Borrower and the Guarantors.
	 
	 	 	“Original Financial Statements” means the Borrower’s audited financial statements for its
fiscal year ended 1 January 2005.
	 
	 	 	“Parent” has the meaning set forth in the definition of “Guarantors”.
	 
	 	 	“Parent Guaranty” has the meaning set forth in the definition of “Guarantors”.
	 
	 	 	“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 Security” has the meaning set forth in Clause 20.3 (Negative Pledge).
	 
	 	 	“Person” means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.
	 
	 	 	“Prior SEC Filings” means, in respect of the Parent, any annual, quarterly or special report
filed prior to the Closing Date by the Parent with the SEC, including all schedules and
attachments thereto, other than materials for which the Parent requested (and obtained
consent or for which it is awaiting consent) non-disclosure for reasons of confidentiality.
	 
	 	 	“Protected Party” has the meaning set forth in Clause 12.1(a) (Definitions).
	 
	 	 	“Quarter Date” means the last day of any Quarter Period.
	 
	 	 	“Quarter Period” means a calendar quarter, ending on 31 March, 30 June, 30 September and 31
December of each year.




9









 






	 	 	“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 Relevant Interbank Market in which case the Quotation Day will be determined
by the Administrative Agent in accordance with market practice in the Relevant Interbank
Market (and if quotations would normally be given by leading banks in the Relevant Interbank
Market on more than one day, the Quotation Day will be the last of those days).
	 
	 	 	“Relevant Interbank Market” means the London interbank market.
	 
	 	 	“Repayment Instalment” has the meaning set forth in Clause 6.1(a) (Repayment of the Loan).
	 
	 	 	“Responsible Officer” means the chief executive officer, president, chief financial officer,
treasurer or assistant treasurer, or the vice president-finance of the applicable Person,
together with, in the case of the Borrower, the board-appointed agent and each director.
	 
	 	 	“SEC” means the Securities and Exchange Commission of the United States of America or any
governmental authority succeeding to any of its principal functions.
	 
	 	 	“Security” means any mortgage, pledge, hypothecation, assignment, deposit, arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security
interest or preferential arrangement in the nature of a security interest of any kind or
nature whatsoever (including any conditional sale or other title retention agreement), any
easement, right of way or other encumbrance on title to real property and any financing
lease having substantially the same economic effect as any of the foregoing.
	 
	 	 	“Selection Notice” means a notice substantially in the form set out in Part II of Schedule 3
(Selection Notice) given in accordance with Clause 9 (Interest Periods).
	 
	 	 	“Subsidiary” of a Person means:






	 	(i)	 	a corporation, partnership, joint venture, limited liability company or other
business entity of which a majority of the shares of securities or other interests
having ordinary voting power for the election of directors or other governing body
(other than securities or interests having such power only by reason of the happening
of a contingency) are at the time beneficially owned, or the management of which is
otherwise controlled, directly, or indirectly through one or more intermediaries, or
both, by such Person; and
	 
	 	(ii)	 	a subsidiary within the meaning of Section 736 of the Companies Act 1985.






	 	 	Unless otherwise specified, “Subsidiary” refers to a Subsidiary of the Borrower.




10









 












	 	 	“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).
	 
	 	 	“Third Parties Act” has the meaning given it in Clause 1.3 (Third Party Rights).
	 
	 	 	“Total Commitments” means the aggregate of the Commitments, being $160,000,000 as at the
date of this Agreement.
	 
	 	 	“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 Administrative Agent and
the Borrower.
	 
	 	 	“Transfer Date” means, in relation to a transfer, the later of:






	 	(a)	 	the proposed Transfer Date specified in the Transfer Certificate; and
	 
	 	(b)	 	the date on which the Administrative Agent executes the Transfer Certificate.






	 	 	“Unpaid Sum” means any sum due and payable but unpaid by an Obligor under the Finance
Documents.
	 
	 	 	“Utilisation” means the utilisation of the Facility.
	 
	 	 	“Utilisation Date” means the date of the Utilisation, being the date on which the Loan is to
be made.
	 
	 	 	“Utilisation Request” means a notice substantially in the form set out in Part I of Schedule
3 (Utilisation Request).
	 
	 	 	“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






	 	(a)	 	Unless a contrary indication appears, any reference in this Agreement to:






	 	(i)	 	the “Administrative Agent”, the “Arranger”, any “Finance
Party”, any “Lender”, any “Obligor” or any “Party” shall be construed so as to
include its successors in title, permitted assigns and permitted transferees;
	 
	 	(ii)	 	“assets” includes present and future properties, revenues and
rights of every description;
	 
	 	(iii)	 	a “Finance Document” or any other agreement or instrument is a
reference to that Finance Document or other agreement or instrument as amended
or novated;




11









 






	 	(iv)	 	“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;
	 
	 	(v)	 	a “person” includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust or partnership
(whether or not having separate legal personality) or two or more of the
foregoing;
	 
	 	(vi)	 	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;
	 
	 	(vii)	 	a provision of law is a reference to that provision as amended
or re-enacted;
	 
	 	(viii)	 	a time of day is a reference to San Francisco time; and
	 
	 	(ix)	 	the definitions of terms herein apply equally to the plural and
singular forms of the terms defined.






	 	(b)	 	Section, Clause and Schedule headings are for ease of reference only.
	 
	 	(c)	 	Unless a contrary indication appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance Document has
the same meaning in that Finance Document or notice as in this Agreement.
	 
	 	(d)	 	A Default (including an Event of Default) is “continuing” if it has not been
remedied or waived.






	1.3	 	Third party rights






	 	(a)	 	Unless expressly provided to the contrary in a Finance Document a person who is
not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the
“Third Parties Act”) to enforce or to enjoy the benefit of any term of this Agreement.
	 
	 	(b)	 	Notwithstanding any term of any Finance Document the consent of any person who
is not a Party is not required to rescind or vary this Agreement at any time.




12









 











SECTION 2

THE FACILITY





	2.	 	THE FACILITY
	 
	2.1	 	The Facility
	 
	 	 	Subject to the terms of this Agreement, the Lenders make available to the Borrower a dollar
term loan facility in an aggregate amount equal to the Total Commitments.
	 
	2.2	 	[Reserved]
	 
	2.3	 	Finance Parties’ Rights and Obligations






	 	(a)	 	The obligations of each Finance Party under the Finance Documents are
several. Failure by a Finance Party to perform its obligations under the Finance
Documents does not affect the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations of any other Finance
Party under the Finance Documents.
	 
	 	(b)	 	The rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising under the Finance
Documents to a Finance Party from an Obligor shall be a separate and independent debt.
	 
	 	(c)	 	A Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance Documents.






	3.	 	PURPOSE
	 
	3.1	 	Purpose
	 
	 	 	The Borrower shall apply all amounts borrowed by it under the Facility towards its lawful
general corporate purposes.
	 
	3.2	 	Monitoring
	 
	 	 	No Finance Party is bound to monitor or verify the application of any amount borrowed
pursuant to this Agreement.
	 
	4.	 	CONDITIONS OF UTILISATION
	 
	4.1	 	Initial conditions precedent
	 
	 	 	The Borrower may not deliver a Utilisation Request unless the Administrative Agent has
received all of the documents and other evidence listed in Schedule 2 (Conditions Precedent)
in form and substance satisfactory to the Administrative Agent (save to the extent that any
of the same have been waived by the Majority Lenders). The




13









 






	 	 	Administrative Agent shall
notify the Borrower and the Lenders promptly upon being so satisfied.
	 
	4.2	 	Further 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)	 	no Default is continuing or would result from the proposed Loan; and
	 
	 	(b)	 	the representations and warranties set out in Clause 17 (Representations and
Warranties) to be made by the Borrower are true in all respects.





SECTION 3

UTILISATION





	5.	 	UTILISATION
	 
	5.1	 	Delivery of a Utilisation Request
	 
	 	 	A Borrower may utilise the Facility by delivery to the Administrative Agent of a duly
completed Utilisation Request not later than 3:00 p.m. 3 Business Days prior to the proposed
Utilisation Date (if the Loan is a LIBOR Loan) or 3:00 p.m. one Business Day prior to the
proposed Utilisation Date (if a Base Rate Loan).
	 
	5.2	 	Completion of a Utilisation Request






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






	 	(i)	 	the proposed Utilisation Date is a Business Day not later than
30 December 2005;
	 
	 	(ii)	 	the currency and amount of the Utilisation comply with Clause
5.3 (Currency and Amount); and
	 
	 	(iii)	 	the proposed Interest Period (if any) complies with Clause 9
(Interest Periods).






	 	(b)	 	Only one Loan may be requested.






	5.3	 	Currency and amount






	 	(a)	 	The currency specified in a Utilisation Request must be Dollars.
	 
	 	(b)	 	The amount of the proposed Loan must be an amount which does not exceed the
Total Commitments.




14









 












	5.4	 	Lenders’ participation






	 	(a)	 	If the conditions set out in this Agreement have been met, each Lender shall
make its participation in the Loan available by the Utilisation Date through its
Facility Office.
	 
	 	(b)	 	The amount of each Lender’s participation in the Loan will be equal to its
Applicable Percentage.
	 
	 	(c)	 	The Administrative Agent shall promptly notify each Lender of the amount of
the Loan and the amount of its participation in the Loan.





SECTION 4

REPAYMENT, PREPAYMENT AND CANCELLATION





	6.	 	REPAYMENT
	 
	6.1	 	Repayment of the Loan






	 	(a)	 	The Borrower shall repay the outstanding principal amount of the Loan in
quarterly instalments (a “Repayment Instalment”). A Repayment Instalment shall fall
due on each Quarter Date (commencing with the first Quarter Date in 2006) in the
amounts outlined in the table below:





	 	 	 	 
	 	Years
from the Closing Date
	 	Percentage of Initial Loan Amount Payable
	 	Year 1

	 	5% per Quarter Date
	 	Year 2

	 	7.5% per Quarter Date
	 	Year 3

	 	12.5% per Quarter Date







	 	(b)	 	Provided that if the Initial Maturity Date is extended pursuant to Clause 7.5
(Extension of Maturity Date), the percentage of the Initial Loan Amount payable
thereafter shall be:






	 	(i)	 	6.25% per Quarter Date in year 3 after the Closing Date; and
	 
	 	(ii)	 	6.25% per Quarter Date in year 4 after the Closing Date.






	6.2	 	Reborrowing
	 
	 	 	The Borrower may not reborrow any part of the Facility which is repaid.




15









 












	7.	 	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 or maintain its participation in
any Loan:






	 	(a)	 	that Lender shall promptly notify the Administrative Agent upon becoming
aware of that event;
	 
	 	(b)	 	upon the Administrative Agent notifying the Borrower, the Commitment of that
Lender will be immediately cancelled; and
	 
	 	(c)	 	the Borrower shall repay that Lender’s participation in the Loan made to the
Borrower on the last day of the Interest Period for the Loan occurring after the
Administrative Agent has notified the Borrower or, if earlier, the date specified by
the Lender in the notice delivered to the Administrative Agent (being no earlier than
the last day of any applicable grace period permitted by law).






	7.2	 	Voluntary Prepayment of the Loan
	 
	 	 	The Borrower may prepay the whole or any part of the Loan (but, if in part, being an amount
that reduces the amount of the Loan by a minimum amount of $1,000,000) at any time without
penalty, subject to reimbursement of any Break Costs or other increased costs incurred by
any Finance Party as a result of such voluntary prepayment. Voluntary prepayments shall be
applied to outstanding Repayment Instalments in reverse order of maturity.
	 
	7.3	 	Right of Repayment and Cancellation in Relation to a Single Lender






	 	(a)	 	If:






	 	(i)	 	any sum payable to any Lender by an Obligor is required to be
increased under paragraph (c) of Clause 12.2 (Tax Gross-Up); or
	 
	 	(ii)	 	any Lender claims indemnification from the Borrower under
Clause 12.3 (Tax Indemnity) or Clause 13.1 (Increased Costs),






	 	 	 	the Borrower may, whilst the circumstance giving rise to the requirement for
indemnification continues, give the Administrative Agent notice of cancellation of
the Commitment of that Lender and its intention to procure the repayment of that
Lender’s participation in the Loan.
	 
	 	(b)	 	On receipt of a notice referred to in paragraph (a) above, the Commitment of
that Lender shall immediately be reduced to zero.




16









 






	 	(c)	 	On or before the last day of the Interest Period which ends after the Borrower
has given notice under paragraph (a) above (or, if earlier, the date specified by the
Borrower in that notice), the Borrower shall repay that Lender’s participation in the
Loan together with Break Costs and other sums accrued and due in relation to such
repayment.






	7.4	 	Restrictions






	 	(a)	 	Any notice of prepayment given by any Party under this Clause 7 shall be
irrevocable and, unless a contrary indication appears in this Agreement, shall specify
the date or dates upon which the relevant cancellation or prepayment is to be made and
the amount of that cancellation or prepayment.
	 
	 	(b)	 	Any prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without premium or
penalty.
	 
	 	(c)	 	The Borrower shall not repay or prepay all or any part of the Loan except at
the times and in the manner expressly provided for in this Agreement.






	7.5	 	Extension of Maturity Date






	 	(a)	 	The Borrower may, by notice to the Administrative Agent (who shall promptly
notify the Lenders) not later than 35 days and not earlier than 45 days prior to the
second anniversary of the Closing Date, request an extension of the Initial Maturity
Date for an additional 365 days.
	 
	 	(b)	 	Each Lender, acting in its sole and individual discretion, shall, by notice
to the Administrative Agent given not later than the date that is 20 days prior to the
second anniversary of the Closing Date, advise the Administrative Agent whether or not
such Lender agrees to such extension. The election of any Lender to agree to such
extension shall not obligate any other Lender to so agree.
	 
	 	(c)	 	The Administrative Agent shall notify the Borrower of each Lender’s
determination under this Clause 7.5 no later than the date 15 days prior to the second
anniversary of the Closing Date (or, if such date is not a Business Day, on the next
preceding Business Day).
	 
	 	(d)	 	If all the Lenders agree to extend the Initial Maturity Date then, effective
as of the second anniversary of the Closing Date, the Initial Maturity Date shall be
extended to the date falling 365 days thereafter (except that, if such date is not a
Business Day, such Maturity Date as so extended shall be the next preceding Business
Day) (the “Extended Maturity Date”).
	 
	 	(e)	 	Notwithstanding the foregoing, the extension of the Initial Maturity Date
pursuant to this Clause 7.5 (the “Extension Option”) shall not be effective with
respect to any Lender unless:




17









 












	 	(i)	 	no Default shall have occurred and be continuing on the date of
such extension and after giving effect thereto; and
	 
	 	(ii)	 	the representations and warranties contained in Clause 17
(Representations and Warranties) are true and correct on and as of the date of
such extension, as though made on and as of such date (or, if such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date).





SECTION 5

COSTS OF UTILISATION





	8.	 	INTEREST
	 
	8.1	 	Calculation of Interest
	 
	 	 	The rate of interest on the Loan for each Interest Period is the percentage rate per annum
which is the aggregate of the applicable:






	 	(a)	 	Margin;
	 
	 	(b)	 	LIBOR (if a LIBOR Loan) or Base Rate (if a Base Rate Loan); and
	 
	 	(c)	 	Mandatory Cost (if any).






	8.2	 	Payment of Interest
	 
	 	 	The Borrower shall pay accrued interest on the LIBOR Loan on the last day of each Interest
Period (and, if the Interest Period is longer than three Months, on the dates falling at
three monthly intervals after the first day of the Interest Period), and shall pay interest
on the Base Rate Loan on each Quarter Date.
	 
	8.3	 	Margin Adjustment






	 	(a)	 	Save as provided in Clause 8.3(b) below (Margin Adjustment), the Margin in
relation to the Loan shall be the rate applicable to the Loan as specified in the
definition of Margin contained in Clause 1.1 (Definitions); and
	 
	 	(b)	 	If the Consolidated Leverage Ratio (as such term is defined in the Parent
Guaranty), in respect of the twelve month period ending on the last day of the most
recent fiscal quarter for which financial statements have been delivered pursuant to
Section 11(a) of the Parent Guaranty (Financial Statements) is within the range of
ratios set out in the “Consolidated Leverage Ratio” column below, then the Margin, as
of the date such financial statements are required to be delivered under the Parent
Guaranty, shall be reduced or increased to (or shall
remain the same as) the percentage per annum as set out opposite the relevant range
in the relevant “Applicable Margin” column below.




18









 











	 	 	 	 	 	 	 	 	 	 
	 	 	 	Applicable Margin %	 	Applicable Margin %
	 	Consolidated Leverage Ratio	 	(LIBOR Loan)	 	(Base Rate Loan)
	 	Less than 1:00
	 	 	0.50	 	 	 	0	 
	 	Less than or equal to 2.00
but greater than or equal to 1:00
	 	 	0.625	 	 	 	0	 
	 	Greater than 2.00
	 	 	0.75	 	 	 	0	 







	8.4	 	Default Interest






	 	(a)	 	If an Obligor fails to pay any amount payable by it under a Finance Document
on its due date, interest shall accrue on the overdue amount from the due date up to
the date of actual payment (both before and after judgment) at a rate which, subject
to paragraph (b) below, is 2 per cent. higher than the rate which would have been
payable if the overdue amount had, during the period of non payment, constituted a
Loan in the currency of the overdue amount for successive Interest Periods (if
applicable), of a duration selected by the Administrative Agent (acting reasonably).
Any interest accruing under this Clause 8.4 shall be immediately payable by the
Obligor on demand by the Administrative Agent.
	 
	 	(b)	 	If any overdue amount consists of all or part of the LIBOR Loan which became
due on a day which was not the last day of an Interest Period relating to the Loan:






	 	(i)	 	the first Interest Period for that overdue amount shall have a
duration equal to the unexpired portion of the current Interest Period relating
to the Loan; and
	 
	 	(ii)	 	the rate of interest applying to the overdue amount during that
first Interest Period shall be 2 per cent. higher than the rate which would
have applied if the overdue amount had not become due.






	 	(c)	 	Default interest (if unpaid) arising on an overdue amount will be compounded
with the overdue amount, at the end of each Interest Period applicable to that overdue
amount, if a LIBOR Loan, or immediately if a Base Rate Loan, but will in any event
remain immediately due and payable.






	8.5	 	Notification of Rates of Interest
	 
	 	 	The Administrative Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.




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	9.	 	INTEREST PERIODS; CONVERSIONS
	 
	9.1	 	Selection of Interest Periods






	 	(a)	 	The Borrower may select an Interest Period for the LIBOR Loan in the
Utilisation Request for the Loan or (if the Loan has already been borrowed) in a
Selection Notice.
	 
	 	(b)	 	The Selection Notice for the LIBOR Loan is irrevocable and must be delivered
to the Administrative Agent by the Borrower not later than 3:00 p.m. three Business
Days prior to the end of any current Interest Period.
	 
	 	(c)	 	If the Borrower fails in connection with the LIBOR Loan to deliver a
Selection Notice to the Administrative Agent in accordance with paragraph (b) above,
the relevant Interest Period for the LIBOR Loan will be one Month.
	 
	 	(d)	 	Subject to this Clause 9, the Borrower may select an Interest Period of 1,
2, 3 or 6 Months, or any other period agreed between the Borrower and the
Administrative Agent (acting on the instructions or with the consent of all Lenders),
subject to availability.
	 
	 	(e)	 	The Interest Period for the LIBOR Loan shall not extend beyond the Final
Maturity Date.
	 
	 	(f)	 	Each Interest Period for the LIBOR Loan shall start on the Utilisation Date
or (if already made) on the last day of its preceding Interest Period, or on the date
of conversion from a Base Rate Loan pursuant to Clause 9.2 (Conversions).






	9.2	 	Conversions
	 
	 	 	Provided that the Borrower may not convert to or select a new Interest Period for a LIBOR
Loan at any time when a Default exists, the Borrower may (a) convert the LIBOR Loan on the
last day of the applicable Interest Period to a Base Rate Loan, or (b) convert the Base Rate
Loan at any time to a LIBOR Loan. That election may be made by telephonic request to the
Administrative Agent no later than (i) 9:00 a.m. on the third Business Day before the
conversion date or the last day of the Interest Period, as the case may be (for conversion
to a LIBOR Loan) and (ii) no later than 9:00 a.m. on the last day of the Interest Period
(for conversion to the Base Rate Loan). Each telephonic notice given by the Borrower
pursuant to this Clause 9.2 must be confirmed promptly by delivery to the Administrative
Agent of a written Selection Notice.
	 
	9.3	 	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).




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	10.	 	CHANGES TO THE CALCULATION OF INTEREST
	 
	10.1	 	[Reserved]
	 
	10.2	 	Market disruption






	 	(a)	 	If a Market Disruption Event occurs in relation to the LIBOR Loan for any
Interest Period, then the rate of interest on each Lender’s share of the Loan for the
Interest Period shall be the percentage rate per annum which is the sum of:






	 	(i)	 	the Margin;
	 
	 	(ii)	 	the rate notified to the Administrative 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 the Loan
from whatever source it may reasonably select; and
	 
	 	(iii)	 	the Mandatory Cost, if any, applicable to that Lender’s
participation in the Loan.






	 	(b)	 	In this Agreement “Market Disruption Event” means:






	 	(i)	 	at or about noon on the Quotation Day for the relevant Interest
Period the Eurodollar Base Rate is not available; or
	 
	 	(ii)	 	before close of business in London on the Quotation Day for the
relevant Interest Period, the Administrative Agent receives notifications from
a Lender or group of Lenders (whose participations in the Loan exceed 50 per
cent. of the Loan) that the cost to it or them of obtaining matching deposits
in the Relevant Interbank Market would be in excess of LIBOR.






	10.3	 	Alternative Basis of Interest or Funding






	 	(a)	 	If a Market Disruption Event occurs and the Administrative Agent or the
Borrower so requires, the Administrative Agent and the Borrower 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.
	 
	 	(b)	 	Any alternative basis agreed pursuant to paragraph (a) above shall, with the
prior consent of all the Lenders and the Borrower, be binding on all Parties.






	10.4	 	Break Costs






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




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






	11.	 	FEES
	 
	11.1	 	Upfront Fee
	 
	 	 	The Borrower shall pay to the Arranger (for the account of each Lender) a fee in the amount
and at the time agreed in the Fee Letter.
	 
	11.2	 	Arrangement Fee
	 
	 	 	The Borrower shall pay to the Arranger an arrangement fee in the amount and at the time
agreed in the Fee Letter.
	 
	11.3	 	Agency Fee
	 
	 	 	The Borrower shall pay to the Administrative Agent (for its own account) an agency fee in
the amount and at the time agreed in the Fee Letter.





SECTION 6

ADDITIONAL PAYMENT OBLIGATIONS





	12.	 	TAX GROSS UP AND INDEMNITIES
	 
	12.1	 	Definitions






	 	(a)	 	In this Agreement:
	 
	 	 	 	“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.
	 
	 	 	 	“Tax Credit” means a credit against, relief or remission for, or repayment of any
Tax.
	 
	 	 	 	“Tax Deduction” means a deduction or withholding for or on account of Tax from a
payment under a Finance Document.
	 
	 	 	 	“Tax Payment” means either the increase in a payment made by an Obligor to a Finance
Party under Clause 12.2 (Tax Gross-Up) or a payment made under Clause 12.3 (Tax
Indemnity).




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	12.2	 	Tax Gross-Up






	 	(a)	 	The Borrower shall, and shall ensure that each Obligor shall make all
payments to be made by it without any Tax Deduction, unless a Tax Deduction is
required by law.
	 
	 	(b)	 	The Borrower shall promptly upon becoming aware that an Obligor must make a
Tax Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Administrative Agent accordingly. Similarly, a Lender shall
notify the Administrative Agent on becoming so aware in respect of a payment payable
to that Lender. If the Administrative Agent receives such notification from a Lender
it shall notify that Obligor.
	 
	 	(c)	 	If a Tax Deduction is required by law to be made by an Obligor, the amount of
the payment due from that Obligor shall be increased to an amount which (after making
any Tax Deduction) leaves an amount equal to the payment which would have been due if
no Tax Deduction had been required.
	 
	 	(d)	 	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.
	 
	 	(e)	 	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 Administrative 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.
	 
	 	(f)	 	Any Finance Party that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower (or other
Obligor, as appropriate) is located, or any treaty to which such jurisdiction is a
party, with respect to payments under a Finance Document shall deliver to the Borrower
(or other Obligor, as appropriate) (with a copy to the Administrative Agent), such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Obligor as will permit such payments to be made without
withholding or at a reduced rate, provided that such Finance Party is legally entitled
to complete, execute and deliver such documentation and in such Finance Party’s
reasonable judgment such completion, execution or submission would not materially
prejudice the legal position of such Finance Party.






	12.3	 	Tax Indemnity






	 	(a)	 	The Borrower shall (within ten Business Days of demand by the Administrative
Agent) pay to a Protected Party an amount equal to the loss, liability or cost which




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	 	 	 	will be or has been (directly or indirectly) suffered by a Protected Party for or on
account of Tax by that Protected Party in respect of a Finance Document.
	 
	 	(b)	 	Paragraph (a) above shall not apply:






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






	 	(A)	 	under the law of the jurisdiction in which that
Finance Party is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as resident for
tax purposes; or
	 
	 	(B)	 	under the law of the jurisdiction in which that
Finance Party’s Facility Office is located in respect of amounts
received or receivable in that jurisdiction,






	 	 	 	if that Tax is imposed on or calculated by reference to the net profits or net
income received or receivable by that Finance Party; or






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






	 	(A)	 	is compensated for by an increased payment
under Clause 12.2 (Tax Gross-Up); or
	 
	 	(B)	 	would have been compensated for by an increased
payment under Clause 12.2 (Tax Gross-Up) but was not so compensated
solely because of a failure by the relevant Protected Party to comply
with its obligations in Clause 12.2(f).






	 	(c)	 	A Protected Party making, or intending to make a claim under paragraph (a)
above shall promptly notify the Administrative Agent of the event which will give, or
has given, rise to the claim, following which the Administrative Agent shall notify
the Borrower.
	 
	 	(d)	 	A Protected Party shall, on receiving a payment from an Obligor under this
Clause 12.3, notify the Administrative Agent.






	12.4	 	Tax Credit
	 
	 	 	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
	 
	 	(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.




24









 












	12.5	 	Stamp Taxes
	 
	 	 	The Borrower shall pay and, within ten Business Days of demand, indemnify each Finance Party
against any cost, loss or liability that Finance Party incurs in relation to all stamp duty,
registration and other similar Taxes payable in respect of any Finance Document.
	 
	12.6	 	Value Added Tax






	 	(a)	 	All amounts set out, or expressed to be payable under a Finance Document by
any Party to a Finance Party which (in whole or in part) constitute the consideration
for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on
such supply, and accordingly, subject to paragraph (c) below, if VAT is chargeable on
any supply made by any Finance Party to any Party under 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).
	 
	 	(b)	 	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 neither it
nor any other member of the group of which it is a member for VAT purposes is entitled
to credit or repayment from the relevant tax authority in respect of the VAT.






	13.	 	INCREASED COSTS
	 
	13.1	 	Increased Costs






	 	(a)	 	Subject to Clause 13.3 (Exceptions) the Borrower shall, within ten Business
Days of a demand by the Administrative 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.
	 
	 	(b)	 	In this Agreement “Increased Costs” means:






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




25









 












	 	 	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.
	 
	13.2	 	Increased Cost Claims






	 	(a)	 	A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased
Costs) shall notify the Administrative Agent of the event giving rise to the claim,
following which the Administrative Agent shall promptly notify the Borrower.
	 
	 	(b)	 	Each Finance Party shall, as soon as practicable after a demand by the
Administrative Agent, provide a certificate confirming the amount of its Increased
Costs together with the calculation of such amount.






	13.3	 	Exceptions






	 	(a)	 	Clause 13.1 (Increased Costs) does not apply to the extent any Increased Cost
is:






	 	(i)	 	attributable to a Tax Deduction required by law to be made by
an Obligor;
	 
	 	(ii)	 	compensated for by Clause 12.3 (Tax Indemnity) (or would have
been compensated for under Clause 12.3 (Tax Indemnity) but was not so
compensated solely because any of the exclusions in paragraph (b) of Clause
12.3 (Tax Indemnity) applied);
	 
	 	(iii)	 	compensated for by the payment of the Mandatory Cost;
	 
	 	(iv)	 	attributable to the wilful breach by the relevant Finance Party
or its Affiliates of any law or regulation; or
	 
	 	(v)	 	not notified to the Borrower in accordance with Clause 13.1(a)
(Increased Costs) within 60 days of such Increased Costs arising.






	 	(b)	 	In this Clause 13.3, a reference to a “Tax Deduction” has the same meaning
given to the term in Clause 12.1 (Definitions).






	14.	 	OTHER INDEMNITIES
	 
	14.1	 	Currency Indemnity






	 	(a)	 	If any sum due from an Obligor under the Finance Documents (a “Sum”), or any
order, judgment or award given or made in relation to a Sum, has to be converted from
the currency (the “First Currency”) in which that Sum is payable into another currency
(the “Second Currency”) for the purpose of:






	 	(i)	 	making or filing a claim or proof against that Obligor; or




26









 






	 	(ii)	 	obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,






	 	 	 	the Borrower shall and shall procure that any such other Obligor shall as an
independent obligation, within ten Business Days of demand, indemnify each Finance
Party to whom that Sum is due against any cost, loss or liability arising out of or
as a result of the conversion including any discrepancy between (A) the rate of
exchange used to convert that Sum from the First Currency into the Second Currency
and (B) the rate or rates of exchange available to that person at the time of its
receipt of that Sum.
	 
	 	(b)	 	Each Obligor waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency or currency unit other than that in
which it is expressed to be payable.






	14.2	 	Other Indemnities
	 
	 	 	The Borrower shall (or shall procure that an Obligor will), within ten Business Days of
demand, indemnify each Finance Party and their respective affiliates and their officers,
directors, employees, agents and advisers from and against all losses, liabilities, claims,
damages and reasonable and documented out-of-pocket costs and expenses incurred by that
Finance Party as a result of:






	 	(a)	 	the occurrence 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 25 (Sharing Among the Finance Parties);
	 
	 	(c)	 	funding, or making arrangements to fund, its participation in the Loan
requested by the Borrower in a Utilisation Request but not made by reason of the
operation of any one or more of the provisions of this Agreement (other than by reason
of default or negligence by that Lender alone);
	 
	 	(d)	 	the Borrower’s use of the proceeds of the Loan; or
	 
	 	(e)	 	the Loan (or part of the Loan) not being prepaid in accordance with a notice
of prepayment given by the Borrower,






	 	 	including but not limited to reasonable and documented legal fees. This indemnification
shall survive and continue for the benefit of all such Persons or entities.




27









 












	14.3	 	Indemnity to the Administrative Agent
	 
	 	 	The Borrower shall promptly indemnify the Administrative Agent against any cost, loss or
liability (including all reasonable and documented legal fees) incurred by the
Administrative 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.






	15.	 	MITIGATION BY THE LENDERS
	 
	15.1	 	Mitigation






	 	(a)	 	Each Finance Party shall, in consultation with the Borrower, 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 12 (Tax Gross-Up and Indemnities), Clause 13
(Increased Costs) or paragraph 3 of Schedule 4 (Mandatory Cost Formula) including (but
not limited to) transferring its rights and obligations under the Finance Documents to
another Affiliate or Facility Office.
	 
	 	(b)	 	Paragraph (a) above does not in any way limit the Obligations of any Obligor
under the Finance Documents.






	15.2	 	Limitation of Liability






	 	(a)	 	The Borrower 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 15.1 (Mitigation).
	 
	 	(b)	 	A Finance Party is not obliged to take any steps under Clause 15.1
(Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so
might be prejudicial to it.






	16.	 	COSTS AND EXPENSES
	 
	16.1	 	Transaction Expenses
	 
	 	 	The Borrower shall promptly on demand pay the Administrative Agent and the Arranger the
amount of all reasonable and documented out-of-pocket costs and expenses (including legal
fees) reasonably incurred by any of them in connection with the negotiation, preparation,
due diligence, printing, execution, administration, syndication and closing of:






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




28









 






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






	16.2	 	Amendment Costs
	 
	 	 	If (a) an Obligor requests an amendment, waiver or consent to, in respect of or under a
Finance Document or (b) an amendment is required pursuant to Clause 26.9 (Change of
Currency), of or in relation to any Finance Document, the Borrower shall, within ten
Business Days of demand, reimburse the Administrative Agent for the amount of all reasonable
and documented costs and expenses (including legal fees) reasonably incurred by the
Administrative Agent in responding to, evaluating, negotiating or complying with that
request or requirement.
	 
	16.3	 	Enforcement Costs
	 
	 	 	The Borrower shall, within ten Business Days of demand, pay to each Finance Party the amount
of all reasonable and documented costs and expenses (including legal fees) incurred by that
Finance Party in connection with the enforcement of, or the preservation of any rights
under, any Finance Document.





SECTION 7

REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT





	17.	 	REPRESENTATIONS AND WARRANTIES
	 
	 	 	The Borrower makes the representations and warranties set out in this Clause 17 to each
Finance Party on the Closing Date, the Utilisation Date and the Maturity Extension Date (if
any).
	 
	17.1	 	Corporate Existence and Status






	 	(a)	 	Each of the Borrower and each of its Material Subsidiaries is a corporation,
duly incorporated and validly existing and, where incorporated in a jurisdiction which
recognizes the concept, in good standing under the law of its jurisdiction of
incorporation.
	 
	 	(b)	 	Each of the Borrower and each of its Material Subsidiaries has all requisite
power and authority and all requisite government licences, consents, authorisations
and approvals to:






	 	(i)	 	own or lease its assets and carry on its business as it is
being conducted as at the date of this Agreement; and
	 
	 	(ii)	 	execute and deliver, and perform its obligations under, the
Finance Documents to which it is a party.




29









 












	17.2	 	Binding Obligations
	 
	 	 	The obligations expressed to be assumed by the Borrower and CTL in each Finance Document to
which it is a party are, subject to any general principles of law limiting its obligations
which are specifically referred to in any legal opinion delivered pursuant to Clause 4
(Conditions of Utilisation), legal, valid, binding and enforceable obligations.
	 
	17.3	 	Non-conflict with other Obligations
	 
	 	 	The execution and delivery, and performance of its obligations by the Borrower and CTL of,
and the transactions contemplated by, the Finance Documents to which it is a party do not
and will not conflict with:






	 	(a)	 	any law or regulation applicable to it;
	 
	 	(b)	 	its or any of its Subsidiaries’ respective constitutional documents; or
	 
	 	(c)	 	any agreement or instrument binding upon it or any of its respective
Subsidiaries;
	 
	 	(d)	 	the ownership or lease of any property or assets belonging to it or any of
its respective Subsidiaries; or
	 
	 	(e)	 	any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which it or any of its respective Subsidiaries are subject.






	17.4	 	Power and Authority
	 
	 	 	Each of the Borrower and CTL has the power to enter into, perform and deliver, and has taken
all necessary corporate or other organisational action to authorise its entry into,
performance of its obligations under and delivery of, the Finance Documents to which it is a
party and the transactions contemplated by those Finance Documents.
	 
	17.5	 	Governmental Authorisation and Other Consents
	 
	 	 	No approval, consent, exemption, authorisation or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, any Finance Party of
this Agreement or any other Finance Document.
	 
	17.6	 	Validity and Admissibility in Evidence
	 
	 	 	All Authorisations required or desirable:






	 	(a)	 	to enable each of the Borrower and CTL lawfully to enter into, exercise its
respective rights and comply with its respective obligations in the Finance Documents
to which it is a party; and




30









 






	 	(b)	 	to make the Finance Documents to which it is a party admissible in evidence
in its jurisdiction of incorporation,






	 	 	have been obtained or effected and are in full force and effect.






	17.7	 	[Reserved]
	 
	17.8	 	No Filing or Stamp Taxes
	 
	 	 	Under the law of the jurisdiction of incorporation of each of the Borrower and CTL, it is
not necessary that any of the Finance Documents to which it is party be filed, recorded or
enrolled with any court or other authority in that jurisdiction or that any stamp,
registration or similar tax be paid on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents.
	 
	17.9	 	No Default






	 	(a)	 	No Event of Default is continuing or would reasonably be expected to result
from the making of any Utilisation.
	 
	 	(b)	 	No other event or circumstance is outstanding which would reasonably be
expected to have a Material Adverse Effect.






	17.10	 	No Misleading Information
	 
	 	 	The Obligors have made available to the Administrative Agent and the Lenders, pursuant to
the Prior SEC Filings or otherwise, all material agreements, instruments and corporate or
other restrictions to which they or any of their Subsidiaries is subject, and all other
matters known to them, that individually or in the aggregate would reasonably be expected
to have a Material Adverse Effect. No report, financial statement, certificate or other
information furnished (whether in writing or orally) by or on behalf of any Obligor to the
Administrative Agent or any Lender in connection with the transactions contemplated hereby
and the negotiation of this Agreement or delivered hereunder or under any other Finance
Document (in each case, as modified or supplemented by other information so furnished) and
disclosed or referenced in the Information Memorandum contains any material misstatement of
fact or omits to state any material fact necessary to make the statements therein not
misleading, in the light of the circumstances under which they were made; provided that any
such information published by Gartner Dataquest and appearing in the Information Memorandum
shall not be included within the scope of this Clause 17.10, and provided,
further, that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time (it being understood that the projected information
is subject to significant uncertainties and contingencies, many of which are beyond the
Obligors’ control), and that, subject to the statement above that such information was
prepared in good faith based upon assumptions believed to be reasonable at the time, no
assurance can be given that any projections will be realized.




31









 






	17.11	 	Financial Statements






	 	(a)	 	The Original Financial Statements were prepared in accordance with GAAP-IR,
consistently applied unless expressly disclosed to the Administrative Agent in writing
to the contrary before the date of this Agreement.
	 
	 	(b)	 	The Original Financial Statements fairly represent the Borrower’s financial
condition and operations (consolidated) during the relevant fiscal year unless
expressly disclosed to the Administrative Agent in writing to the contrary before the
date of this Agreement.
	 
	 	(c)	 	The Original Financial Statements show all material Financial Indebtedness
and other liabilities, direct or contingent of the Borrower as of the date thereof,
including liabilities for taxes, material commitments and Financial Indebtedness.
	 
	 	(d)	 	There has been no event or circumstance, either individually or in aggregate,
which has had or would reasonably be expected to have a Material Adverse Effect since
1 January 2005.






	17.12	 	Margin Regulations
	 
	 	 	The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or
carrying margin stock.
	 
	17.13	 	Ownership of Property and Security
	 
	 	 	The Borrower and each Subsidiary has good and marketable title in fee simple to, or
leasehold interests in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The property of the Borrower and
its Subsidiaries is not subject to any Security except for the Permitted Security.
	 
	17.14	 	Taxes
	 
	 	 	The Borrower and its Material Subsidiaries have (a) filed all national and material local
tax returns and reports required to be filed, and (b) have paid all material national and
local taxes, assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP-IR. Except as specifically
disclosed in Prior SEC Filings, there is no proposed tax assessment against the Borrower or
any Material Subsidiary that would reasonably be expected to have a Material Adverse Effect.




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	17.15	 	Material Subsidiaries; Equity Interests
	 
	 	 	The Borrower has no Material Subsidiaries other than those specifically disclosed in
Schedule 7 or in Prior SEC Filings, and all of the outstanding Equity Interests in such
Material Subsidiaries have been validly issued, are fully paid and are owned by the Borrower
free and clear of all Security other than any Permitted Security. All of the outstanding
Equity Interests in the Borrower have been validly issued and are fully paid.
	 
	17.16	 	Compliance with Laws
	 
	 	 	The Borrower and each of its Material Subsidiaries are compliance in all material respects
with the requirements of all laws and all orders, writs, injunctions and decrees applicable
to them or to their properties, except in such instances in which (a) such requirement of
law or order, writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
	 
	17.17	 	Pari Passu Ranking
	 
	 	 	Each Obligor’s payment obligations under the Finance Documents to which it is party rank at
least pari passu with the claims of all its respective other unsecured and unsubordinated
creditors, except for Obligations mandatorily preferred by law applying to companies
generally.
	 
	17.18	 	No Proceedings Pending or Threatened
	 
	 	 	There are no actions, suits or proceedings pending or, to the best of the knowledge of the
Borrower, threatened, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Borrower or any of its Material Subsidiaries that:






	 	(a)	 	are pending as of the date hereof, any Utilisation Date or any Maturity
Extension Date, and purport to affect or pertain to this Agreement or any other
Finance Document, or any of the transactions contemplated hereunder or thereunder; or
	 
	 	(b)	 	except as specifically disclosed in Prior SEC Filings, either individually or
in the aggregate, would reasonably be expected to have a Material Adverse Effect.






	17.19	 	Guaranties
	 
	 	 	All representations and warranties of the Guarantors in the Guaranties are true and correct.
	 
	18.	 	INFORMATION UNDERTAKINGS
	 
	 	 	The undertakings in this Clause 18 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.




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	18.1	 	Notification of Default






	 	(a)	 	The Borrower shall notify the Administrative Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon becoming aware of its
occurrence.
	 
	 	(b)	 	Promptly upon a request by the Administrative Agent, the Borrower shall
supply to the Administrative 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).






	18.2	 	“Know Your Customer” Checks






	 	(a)	 	If:






	 	(i)	 	the introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation made after the date of
this Agreement;
	 
	 	(ii)	 	any change in the status of an Obligor after the date of this
Agreement; or
	 
	 	(iii)	 	a proposed assignment or transfer by a Lender of any of its
rights and obligations under this Agreement to a party that is not a Lender
prior to such assignment or transfer,






	 	 	 	obliges the Administrative Agent or any Lender (or, in the case of paragraph (iii)
above, any prospective new Lender) to comply with “know your customer” or similar
identification procedures in circumstances where the necessary information is not
already available to it, the Borrower shall, and shall procure that each Obligor
shall promptly upon the request of the Administrative Agent or any Lender supply, or
procure the supply of, such documentation and other evidence as is reasonably
requested by the Administrative Agent (for itself or on behalf of any Lender) or any
Lender (for itself or, in the case of the event described in paragraph (iii) above,
on behalf of any prospective new Lender) in order for the Administrative Agent, such
Lender or, in the case of the event described in paragraph (iii) above, any
prospective new Lender to carry out and be satisfied it has complied with all
necessary “know your customer” or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance Documents.
	 
	 	(b)	 	Each Lender shall promptly upon the request of the Administrative Agent
supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the Administrative Agent (for itself) in order for the
Administrative Agent to carry out and be satisfied it has complied with all necessary
“know your customer” or other similar checks under all applicable laws and regulations
pursuant to the transactions contemplated in the Finance Documents.




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	19.	 	[RESERVED]
	 
	20.	 	GENERAL UNDERTAKINGS
	 
	 	 	The undertakings in this Clause 20 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
and accordingly the Borrower shall and shall procure that:
	 
	20.1	 	Authorisations
	 
	 	 	Each of the Borrower and CTL shall 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 Administrative Agent of,






	 	 	any Authorisation required under any law or regulation of its jurisdiction of incorporation
to enable it to perform its obligations under the Finance Documents to which it is a party
and, to ensure the legality, validity, enforceability or admissibility in evidence in its
jurisdiction of incorporation of any Finance Document.
	 
	20.2	 	Compliance with Laws and Contractual Obligations
	 
	 	 	Each of the Borrower and CTL and each of their Material Subsidiaries shall comply in all
material respects with:






	 	(a)	 	all contractual obligations; and
	 
	 	(b)	 	the requirements of all laws, orders, writs, injunctions and decrees to which
it or any of its Material Subsidiaries are subject (except where such requirement is
being contested in good faith by appropriate proceedings diligently conducted),






	 	 	if failure so to comply would materially impair its ability to perform its obligations under
the Finance Documents.
	 
	20.3	 	Negative Pledge






	 	(a)	 	Neither the Borrower nor any of its Material Subsidiaries shall create or
permit to subsist any Security over any of its assets.
	 
	 	(b)	 	Neither the Borrower nor any of its Material Subsidiaries shall:






	 	(i)	 	sell, transfer or otherwise dispose of any of its receivables
on recourse terms;




35









 






	 	(ii)	 	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
	 
	 	(iii)	 	enter into any other preferential arrangement having a similar
effect, in circumstances where the arrangement or transaction is entered into
primarily as a method of raising Financial Indebtedness or of financing the
acquisition of an asset.






	 	(c)	 	Paragraphs (a) and (b) above do not apply to:






	 	(i)	 	any Security listed in Schedule 6 (Existing Security) and any
renewals and extensions thereof except to the extent the principal amount
secured by that Security exceeds the amount stated in that Schedule;
	 
	 	(ii)	 	any netting or set-off arrangement entered into by the Borrower
or its Subsidiaries in the ordinary course of its banking arrangements for the
purpose of netting debit and credit balances;
	 
	 	(iii)	 	any Security arising by operation of law and in the ordinary
course of trading;
	 
	 	(iv)	 	any Security over or affecting any asset acquired by the
Borrower or its Subsidiaries after the date of this Agreement if:






	 	(A)	 	the Security was not created in contemplation
of the acquisition of that asset by the Borrower or its Subsidiaries;
	 
	 	(B)	 	the principal amount secured has not been
increased in contemplation of, or since the acquisition of that asset
by the Borrower or its Subsidiaries; and
	 
	 	(C)	 	the Security is removed or discharged within 3
months of the date of acquisition of such asset;






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






	 	(A)	 	the Security was not created in contemplation
of the acquisition of that company;
	 
	 	(B)	 	the principal amount secured has not increased
in contemplation of or since the acquisition of that company; and
	 
	 	(C)	 	the Security is removed or discharged within 3
months of that company becoming a Subsidiary;




36









 












	 	(vi)	 	any Security entered into pursuant to any Finance Document;
	 
	 	(vii)	 	easements, rights of way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Borrower or its Subsidiaries;
	 
	 	(viii)	 	any Security arising under any retention of title, hire purchase or
conditional sale arrangement or arrangements having similar effect in respect
of goods supplied to the Borrower or its Subsidiaries 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 the Borrower or any of its Subsidiaries;
	 
	 	(ix)	 	any Security on the proceeds of assets, which assets were
subject to Security permitted hereunder or on assets acquired with such
proceeds as a replacement of such former assets;
	 
	 	(x)	 	any Security on Receivables (as defined in the Parent Guaranty)
and Receivables-Related Assets (as defined in the Parent Guaranty) in
connection with any Permitted Receivables Purchase Facility (as defined in the
Parent Guaranty); or
	 
	 	(xi)	 	any Security securing indebtedness the principal amount of
which (when aggregated with the principal amount of any other indebtedness
which has the benefit of Security given by any member of the Group other than
any permitted under paragraphs (i) to (vi) above) does not exceed $100,000,000
(or its equivalent in another currency or currencies).




All items referred to in this Clause 20.3(c) are, together, the “Permitted Security”.





	20.4	 	Disposals






	 	(a)	 	Neither the Borrower nor any of its Material Subsidiaries shall enter into a
single transaction or a series of related transactions and whether voluntary or
involuntary to sell, lease, transfer or otherwise dispose of all or any substantial
part of their respective assets.
	 
	 	(b)	 	Paragraph (a) above does not apply to any sale, lease, transfer or other
disposal:






	 	(i)	 	made in the ordinary course of trading of the disposing entity;
	 
	 	(ii)	 	of assets in exchange for other assets comparable or superior
as to type, value and quality;
	 
	 	(iii)	 	of any asset by a member of the Group to another member of the
Group;




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	 	(iv)	 	arising as a result of any Permitted Security;
	 
	 	(v)	 	of an asset that is obsolete for the purpose for which such
asset is normally utilised or has been utilised by the relevant member of the
Group; or
	 
	 	(vi)	 	where the higher of the market value or consideration
receivable (when aggregated with the higher of the market value or
consideration receivable for any other sale, lease, transfer or other disposal,
other than any permitted under paragraphs (i) to (iv) above) does not exceed
$50,000,000 (or its equivalent in another currency or currencies) in any fiscal
year.






	20.5	 	Change of Business
	 
	 	 	No substantial change is made to the general nature of the business of the Borrower or its
Material Subsidiaries from that carried on at the date of this Agreement.
	 
	20.6	 	Payment of Obligations
	 
	 	 	The Borrower and each of its Material Subsidiaries shall promptly pay and discharge all its
respective material Obligations and liabilities, including:






	 	(a)	 	all material tax liabilities, assessments and governmental charges or levies
upon it or its properties or assets, unless the same are being contested in good faith
by appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP-IR are being maintained by such Obligor or its Subsidiary;
	 
	 	(b)	 	each lawful material claim which, if unpaid, would by law create Security
over the property of the Borrower or its Material Subsidiaries (other than a Permitted
Security), unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP-IR are
being maintained by the Borrower or such relevant Material Subsidiary; and
	 
	 	(c)	 	all material Financial Indebtedness, as and when due and payable, but subject
to any subordination provisions contained in any instrument or agreement evidencing
such Financial Indebtedness are paid and discharged as the same shall become due and
payable.






	20.7	 	Preservation of Existence






	 	(a)	 	The legal existence of the Borrower and its Material Subsidiaries is
preserved, renewed and maintained in full force and effect and, where incorporated in
a jurisdiction which recognizes the concept, is in good standing under the laws of the
jurisdiction of its incorporation;
	 
	 	(b)	 	All reasonable action to maintain all rights, privileges, permits, licenses
and franchises necessary or desirable in the normal conduct of the Borrower’s and its




38









 






	 	 	 	Material Subsidiaries’ respective business is taken, except to the extent that failure
to do so would not reasonably be expected to have a Material Adverse Effect; and
	 
	 	(c)	 	All of the registered patents, trademarks, trade names and service marks of
the Borrower and its Subsidiaries, the non-preservation of which would reasonably be
expected to have a Material Adverse Effect, shall be preserved.






	20.8	 	Books and Records
	 
	 	 	The Borrower and each of its Subsidiaries shall maintain proper books of record and account,
in which true and correct entries in conformity with GAAP-IR consistently applied shall be
made of all financial transactions and matters involving the assets and business of the
Borrower and its Subsidiaries.
	 
	20.9	 	[Reserved]
	 
	20.10	 	Use of Proceeds
	 
	 	 	The proceeds of the Loan are used for lawful general corporate purposes not in contravention
of any law or of any Finance Document.
	 
	20.11	 	Transactions with Affiliates
	 
	 	 	Neither the Borrower nor any of its Material Subsidiaries shall enter into any transaction
of any kind with any Affiliate of such Person, whether or not in the ordinary course of
business, other than on fair and reasonable terms substantially as favourable to the
Borrower or any of its Subsidiaries as would be obtainable by the Borrower or any of its
Subsidiaries at the time in a comparable arm’s length transaction with a person other than
an Affiliate, provided that the foregoing restriction shall not apply to (i) transactions
between or among the Borrower and any of its wholly-owned Subsidiaries or between and among
any wholly-owned Subsidiaries, (ii) the payment or grant of reasonable compensation,
benefits and indemnities to any director, officer, employee or agent of the Borrower or any
such Subsidiary, and (iii) transactions and agreements in existence on the date hereof and
specifically disclosed in Prior SEC Filings.
	 
	20.12	 	Governing Law and Enforcement
	 
	 	 	The Borrower shall not, and shall procure that no other Obligor shall contest in any manner
whatsoever:






	 	(a)	 	the choice of English law as the governing law of this Agreement; or
	 
	 	(b)	 	the submission to the jurisdiction of the English courts pursuant to Clause
35.1 (Jurisdiction); or
	 
	 	(c)	 	the enforcement in any jurisdiction of any judgement obtained in England in
relation to this Agreement, provided that nothing in this Clause 20.12(c) shall be




39









 






	 	 	 	construed to limit the Borrower’s right to appeal any judgement obtained in England
that may exist under English law in an English Court.






	21.	 	EVENTS OF DEFAULT
	 
	 	 	Each of the events or circumstances set out in this Clause 21 is an Event of Default.

	 
	21.1	 	
 Non-payment
	 
	 	 	The Borrower or CTL does not pay on the due date any amount payable by it (including without
limitation principal, interest, fees or other amounts) pursuant to a Finance Document to
which it is a party at the place and in the currency in which it is expressed to be payable
unless:
	 
	(a)	 	its failure to pay is caused by an administrative or technical error; and
	 
	(b)	 	such payment is made within two Business Days of the due date.
	 
	21.2	 	Other Obligations
	 
	 	 	The Borrower or CTL does not comply with any provision of the Finance Documents (other than
those referred to in Clause 21.1 (Non-payment) unless the failure to comply is capable of
remedy and is remedied within 35 days.
	 
	21.3	 	Misrepresentation
	 
	 	 	Any written representation or statement made or deemed to be made by the Borrower or CTL in
the Finance Documents or any other document delivered by such Obligor under or in connection
with any Finance Document is or proves to have been incorrect or misleading in any material
respect when made or deemed to be made.
	 
	21.4	 	Insolvency






	 	(a)	 	The Borrower or any of its Material Subsidiaries is unable or admits in
writing its respective inability to pay its debts as they fall due, suspends making
payments on any of its debts or, by reason of actual or anticipated financial
difficulties,
commences negotiations with one or more of its creditors with a view to rescheduling
any of its indebtedness.
	 
	 	(b)	 	The value of the assets of the Borrower or any of its Material Subsidiaries
is less than its liabilities, (taking into account contingent and prospective
liabilities).
	 
	 	(c)	 	A moratorium is declared in respect of any class of indebtedness of the
Borrower or any of its Material Subsidiaries.






	21.5	 	Insolvency Proceedings
	 
	 	 	Any corporate action, legal proceedings or other procedure or step is taken in relation to:




40









 












	 	(a)	 	the suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, examinership, administration or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of the Borrower or any of its
Material Subsidiaries other than in connection with a solvent reconstruction, the
terms of which have been previously approved in writing by the Majority Lenders;
	 
	 	(b)	 	a composition, compromise, assignment or arrangement with any creditor of the
Borrower or any of its Material Subsidiaries;
	 
	 	(c)	 	the appointment of a liquidator (other than in respect of a solvent
liquidation of a member of the Group which is not an Obligor), receiver, examiner,
administrative receiver, administrator, compulsory manager or other similar officer in
respect of the Borrower or any of its Material Subsidiaries or any of their respective
material assets; or
	 
	 	(d)	 	enforcement of any Security over any material assets of the Borrower or any
of its Material Subsidiaries, or any analogous procedure or step is taken in any
jurisdiction to which the Borrower or any such Material Subsidiary or any of their
respective assets is subject.






	21.6	 	Creditors’ Process
	 
	 	 	Any expropriation, attachment, sequestration, distress or execution affects any asset or
assets of the Borrower or any of its Material Subsidiaries having an aggregate value of
$1,000,000 and is not discharged within 20 Business Days.
	 
	21.7	 	Ownership of the Borrower and CTL
	 
	 	 	The Borrower or CTL ceases to be either a direct or indirect wholly-owned Subsidiary of the
Guarantor. For the avoidance of doubt, notwithstanding any provision in any Finance
Document, the mere creation and/or interposition of one or more wholly-owned Subsidiaries
below the Parent but above the Borrower, CTL or any of their respective Subsidiaries shall
not be (or be construed as) a Default or an Event of Default.
	 
	21.8	 	Unlawfulness
	 
	 	 	It is or becomes unlawful for an Obligor to perform any of its respective material
obligations under the Finance Documents.
	 
	21.9	 	Guaranty Default
	 
	 	 	There occurs any Guaranty Default as such term is defined in the Parent Guaranty.




41









 












	21.10	 	Acceleration
	 
	 	 	On and at any time after the occurrence of an Event of Default which is continuing the
Administrative Agent may, and shall if so directed by the Majority Lenders, by notice to the
Borrower:






	 	(a)	 	cancel the Total Commitments whereupon they shall immediately be cancelled;
	 
	 	(b)	 	declare that all or part of the Loan, together with accrued interest, and all
other amounts accrued or outstanding under the Finance Documents be immediately due
and payable, whereupon they shall become immediately due and payable;
	 
	 	(c)	 	declare that all or part of the Loan be payable on demand, whereupon they
shall immediately become payable on demand by the Administrative Agent on the
instructions of the Majority Lenders; and/or
	 
	 	(d)	 	exercise all rights and remedies available to it or the Lenders under the
Finance Documents or applicable law.





SECTION 8

CHANGES TO PARTIES





	22.	 	CHANGES TO THE LENDERS
	 
	22.1	 	Assignments and Transfers by the Lenders
	 
	 	 	Subject to this Clause 22, a Lender (the “Existing Lender”) may:






	 	(a)	 	assign any of its rights; or
	 
	 	(b)	 	transfer by novation any of its rights and obligations under the Finance
Documents,






	 	 	(except in the case of an assignment or transfer of the entire remaining amount of such
Lender’s interest in the Loan, in a minimum amount equal to US$5,000,000) to any Eligible
Assignee approved by the Administrative Agent (the “New Lender”).
	 
	22.2	 	Conditions of Assignment or Transfer






	 	(a)	 	The consent of the Borrower is required for an assignment or transfer by an
Existing Lender, unless:






	 	(i)	 	the assignment or transfer is to another Existing Lender, an
Affiliate of an Existing Lender or an Approved Fund; or
	 
	 	(ii)	 	an Event of Default has occurred and is continuing.




42









 












	 	(b)	 	The consent of the Borrower to an assignment or transfer must not be
unreasonably withheld or delayed. The Borrower will be deemed to have given its
consent ten Business Days after the Existing Lender has requested it unless consent is
expressly refused by the Borrower within that time.
	 
	 	(c)	 	The consent of the Borrower to an assignment or transfer must not be withheld
solely because the assignment or transfer may result in an increase to the Mandatory
Cost.
	 
	 	(d)	 	An assignment will only be effective on:






	 	(i)	 	receipt by the Administrative Agent of written confirmation
from the New Lender (in form and substance satisfactory to the Administrative
Agent) that the New Lender will assume the same obligations to the other
Finance Parties as it would have been under if it was an Original Lender; and
	 
	 	(ii)	 	performance by the Administrative 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 Administrative Agent shall promptly notify to the Existing Lender and
the New Lender.






	 	(e)	 	A transfer will only be effective if the procedure set out in Clause 22.5
(Procedure for Transfer) is complied with.
	 
	 	(f)	 	If:






	 	(i)	 	a Lender assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office; and
	 
	 	(ii)	 	as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor would be obliged to make a
payment to the New Lender or Lender acting through its new Facility Office
under Clause 12 (Tax Gross-Up and Indemnities) or Clause 13 (Increased Costs),






	 	 	 	then the New Lender or Lender acting through its new Facility Office is only
entitled to receive payment under those Clauses to the same extent as the Existing
Lender or Lender acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.






	22.3	 	Assignment or Transfer Fee
	 
	 	 	The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to
the Administrative Agent (for its own account) a processing and recordation fee (an
“Assignment Fee”) of $2,500 for each assignment or transfer provided, however that in the
event of 2 or more concurrent assignments or transfer to members of the same Assignee Group
(which may be effected by a sub-allocation of an assigned or transferred




43









 






	 	 	amount among
members of such Assignee Group) or 2 or more concurrent assignments or transfers by members
of the same Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and
members of its Assignee Group), the Assignment Fee will be $2,500 plus the amount set forth
below:





	 	 	 	 	 	 	 	 
	 	Transaction	 	Assignment Fee
	 	(a)

	 	First four concurrent assignments, transfers or
sub-allocations to members of an Assignee Group (or from
members of an Assignee Group, as applicable).
	 	$	0	 
	 	 
	 	 	 	 	 	 
	 	(b)

	 	Each additional concurrent assignment, transfer or
sub-allocation to a member of such Assignee Group (or from
a member of such Assignee Group, as applicable).
	 	$	500	 







	22.4	 	Limitation of Responsibility of Existing Lenders






	 	(a)	 	Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender for:






	 	(i)	 	the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other documents;
	 
	 	(ii)	 	the financial condition of any Obligor;
	 
	 	(iii)	 	the performance and observance by any Obligor of its
Obligations under the Finance Documents or any other documents; or
	 
	 	(iv)	 	the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document or any other document,






	 	 	 	and any representations or warranties implied by law are excluded.
	 
	 	(b)	 	Each New Lender confirms to the Existing Lender and the other Finance Parties
that it:






	 	(i)	 	has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and affairs of each
Obligor and its related entities in connection with its participation in this
Agreement and has not relied exclusively on any information provided to it by
the Existing Lender in connection with any Finance Document; and
	 
	 	(ii)	 	will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities whilst any amount is
or may be outstanding under the Finance Documents or any Commitment is in
force.




44









 












	 	(c)	 	Nothing in any Finance Document obliges an Existing Lender to:






	 	(i)	 	accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 22; or
	 
	 	(ii)	 	support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by any Obligor of its obligations under
the Finance Documents or otherwise.






	22.5	 	Procedure for Transfer






	 	(a)	 	Subject to the conditions set out in Clause 22.2 (Conditions of Assignment or
Transfer) a transfer is effected in accordance with paragraph (c) below when the
Administrative Agent executes an otherwise duly completed Transfer Certificate
delivered to it by the Existing Lender and the New Lender. The Administrative Agent
shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt
by it of a duly completed Transfer Certificate appearing on its face to comply with
the terms of this Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer Certificate.
	 
	 	(b)	 	The Administrative Agent shall only be obliged to execute a Transfer
Certificate delivered to it by the Existing Lender and the New Lender once it is
satisfied it has complied with all necessary “know your customer” or other similar
checks under all applicable laws and regulations in relation to the transfer to such
New Lender.
	 
	 	(c)	 	On the Transfer Date:






	 	(i)	 	to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer by novation its rights and obligations under the
Finance Documents each of the Obligors and the Existing Lender shall be
released from further obligations towards one another under the Finance
Documents and their respective rights against one another under the
Finance Documents shall be cancelled (being the “Discharged Rights and
Obligations”);
	 
	 	(ii)	 	each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights against one another which
differ from the Discharged Rights and obligations only insofar as that Obligor
and the New Lender have assumed and/or acquired the same in place of that
Obligor and the Existing Lender;
	 
	 	(iii)	 	the Administrative Agent, the Arranger, the New Lender and
other Lenders shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had the New Lender
been an Original Lender with the rights and/or obligations acquired or assumed
by it as a result of the transfer and to that extent the




45









 






	 	 	 	Administrative Agent,
the Arranger and the Existing Lender shall each be released from further
obligations to each other under the Finance Documents; and
	 
	 	(iv)	 	the New Lender shall become a Party as a “Lender”.






	22.6	 	Copy of Transfer Certificate to Borrower
	 
	 	 	The Administrative Agent shall, as soon as reasonably practicable after it has executed a
Transfer Certificate, send to the Borrower a copy of that Transfer Certificate.
	 
	22.7	 	Disclosure of Information
	 
	 	 	Any Lender may disclose to any of its Affiliates and any other person:






	 	(a)	 	to (or through) whom that Lender assigns or transfers (or may potentially
assign or transfer) all or any of its rights and obligations under this Agreement;
	 
	 	(b)	 	with (or through) whom that Lender enters into (or may potentially enter
into) any sub-participation in relation to, or any other transaction under which
payments are to be made by reference to, this Agreement or any Obligor; or
	 
	 	(c)	 	to whom, and to the extent that, information is required to be disclosed by
any applicable law or regulation,






	 	 	any information about any Obligor, the Group and the Finance Documents as that Lender shall
consider appropriate if, in relation to paragraphs (a) and (b) above, the person to whom the
information is to be given has entered into a Confidentiality Undertaking.
	 
	22.8	 	Participations






	 	(a)	 	Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations with voting rights limited
to
significant matters such as changes in amount, rate, maturity date and the release
of the Parent Guaranty to any Person (other than a natural person or the Borrower or
any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or
a portion of such Lender’s rights and/or obligations under the Finance Documents
(including all or a portion of its Commitment and/or the proportion of the Loan
owing to it); provided that:






	 	(i)	 	such Lender’s obligations under this Agreement shall remain
unchanged;
	 
	 	(ii)	 	such Lender shall remain solely responsible to the other
parties for the performance of such obligations; and
	 
	 	(iii)	 	the Borrower and the other Obligors and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement.




46









 












	 	(b)	 	Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce
this Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification described in Clause 32 (Amendments and Waivers) that
affects such Participant. The Borrower agrees that each Participant shall be entitled
to the benefits of Clauses 12, 13 and 14 and to the same extent as if it were a Lender
and had acquired its interest by assignment. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Clause 27 (Set Off) as though it
were a Lender.






	22.9	 	Limitations upon Participant Rights
	 
	 	 	A Participant shall not be entitled to receive any greater payment under Clause 12 (Tax
Gross Up and Indemnities) or Clause 13 (Increased Costs) than the applicable Lender would
have been entitled to receive with respect to the participation sold to such Participant.





SECTION 9

THE FINANCE PARTIES





	23.	 	ROLE OF THE ADMINISTRATIVE AGENT AND THE ARRANGER
	 
	23.1	 	Appointment of the Administrative Agent






	 	(a)	 	Each other Finance Party appoints the Administrative Agent to act as its
Administrative Agent under and in connection with the Finance Documents.
	 
	 	(b)	 	Each other Finance Party authorises the Administrative Agent to exercise the
rights, powers, authorities and discretions specifically given to the Administrative
Agent under or in connection with the Finance Documents together with any other
incidental rights, powers, authorities and discretions.






	23.2	 	Duties of the Administrative Agent






	 	(a)	 	The Administrative Agent shall promptly forward to a Party the original or a
copy of any document which is delivered to the Administrative Agent for that Party by
any other Party.
	 
	 	(b)	 	Except where a Finance Document specifically provides otherwise, the
Administrative Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another Party.




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	 	(c)	 	If the Administrative 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 Finance Parties.
	 
	 	(d)	 	If the Administrative Agent is aware of the non-payment of any principal,
interest, commitment fee or other fee payable to a Finance Party (other than the
Administrative Agent or the Arranger) under this Agreement it shall promptly notify
the other Finance Parties.
	 
	 	(e)	 	The Administrative Agent’s duties under the Finance Documents are solely
mechanical and administrative in nature.






	23.3	 	Role of the Arranger
	 
	 	 	Except as specifically provided in the Finance Documents, the Arranger has no obligations of
any kind to any other Party under or in connection with any Finance Document.
	 
	23.4	 	No Fiduciary Duties






	 	(a)	 	Nothing in this Agreement constitutes the Administrative Agent or the
Arranger as a trustee or fiduciary of any other person.
	 
	 	(b)	 	Neither the Administrative Agent nor the Arranger 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.






	23.5	 	Business with the Group
	 
	 	 	The Administrative Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member of the Group.
	 
	23.6	 	Rights and Discretions of the Administrative Agent






	 	(a)	 	The Administrative Agent may rely on:






	 	(i)	 	any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
	 
	 	(ii)	 	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.






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






	 	(i)	 	no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 21.1 (Non-payment));




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	 	(ii)	 	any right, power, authority or discretion vested in any Party
or the Majority Lenders has not been exercised; and
	 
	 	(iii)	 	any notice or request made by the Borrower (other than a
Utilisation Request or Selection Notice) is made on behalf of and with the
consent and knowledge of all the Obligors.






	 	(c)	 	The Administrative Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other experts.
	 
	 	(d)	 	The Administrative Agent may act in relation to the Finance Documents through
its personnel and Administrative Agents.
	 
	 	(e)	 	The Administrative Agent may disclose to any other Party any information it
reasonably believes it has received as Administrative Agent under this Agreement.
	 
	 	(f)	 	Notwithstanding any other provision of any Finance Document to the contrary,
neither the Administrative Agent nor the Arranger is obliged to do or omit to do
anything if it would or might in its reasonable opinion constitute a breach of any law
or regulation or a breach of a fiduciary duty or duty of confidentiality.






	23.7	 	Majority Lenders’ Instructions






	 	(a)	 	Unless a contrary indication appears in a Finance Document, the
Administrative Agent shall (i) exercise any right, power, authority or discretion
vested in it as Administrative 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 Administrative
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.
	 
	 	(b)	 	Unless a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance Parties.
	 
	 	(c)	 	The Administrative 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.
	 
	 	(d)	 	In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Administrative Agent may act (or refrain from taking
action) as it considers to be in the best interest of the Lenders.
	 
	 	(e)	 	The Administrative 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.





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	23.8	 	Responsibility for Documentation
	 
	 	 	Neither the Administrative Agent nor the Arranger:






	 	(a)	 	is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Administrative Agent, the
Arranger, an Obligor or any other person given in or in connection with any Finance
Document or the Information Memorandum; or
	 
	 	(b)	 	is responsible for 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.






	23.9	 	Exclusion of Liability






	 	(a)	 	Without limiting paragraph (b) below, the Administrative Agent shall 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.
	 
	 	(b)	 	No Party (other than the Administrative Agent) may take any proceedings
against any officer, employee or agent of the Administrative Agent in respect of any
claim it might have against the Administrative 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 Administrative Agent may rely on
this Clause subject to Clause 1.3 (Third Party Rights) and the provisions of the Third
Parties Act.
	 
	 	(c)	 	The Administrative 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 Administrative Agent if the Administrative 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
Administrative Agent for that purpose.
	 
	 	(d)	 	Nothing in this Agreement shall oblige the Administrative Agent or the
Arranger 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 Administrative Agent
and the Arranger that it is solely responsible for any such checks it is required to
carry out and that it may not rely on any statement in relation to such checks made by
the Administrative Agent or the Arranger.






	23.10	 	Lenders’ Indemnity to the Administrative Agent
	 
	 	 	Each Lender shall (in proportion to its Applicable Percentage) indemnify the Administrative
Agent, within ten Business Days of demand, against any cost, loss or liability incurred by
the Administrative Agent (otherwise than by reason of the




50









 






	 	 	Administrative Agent’s gross
negligence or wilful misconduct) in acting as Administrative Agent under the Finance
Documents (unless the Administrative Agent has been reimbursed by an Obligor pursuant to a
Finance Document).
	 
	23.11	 	Resignation of the Administrative Agent






	 	(a)	 	The Administrative Agent may resign and appoint one of its Affiliates as
successor by giving notice to the other Finance Parties and the Borrower.
	 
	 	(b)	 	Alternatively the Administrative Agent may resign by giving notice to the
other Finance Parties and the Borrower, in which case the Majority Lenders (after
consultation with the Borrower) may appoint a successor Administrative Agent.
	 
	 	(c)	 	If the Majority Lenders have not appointed a successor Administrative Agent
in accordance with paragraph (b) above within 30 days after notice of resignation was
given, the Administrative Agent (after consultation with the Borrower) may appoint a
successor Administrative Agent.
	 
	 	(d)	 	The retiring Administrative Agent shall, make available to the successor
Administrative Agent such documents and records and provide such assistance as the
successor Administrative Agent may reasonably request for the purposes of performing
its functions as Administrative Agent under the Finance Documents.
	 
	 	(e)	 	The Administrative Agent’s resignation notice shall take effect only upon the
appointment of a successor.
	 
	 	(f)	 	Upon the appointment of a successor, the retiring Administrative Agent shall
be discharged from any further obligation in respect of the Finance Documents but
shall remain entitled to the benefit of this Clause 23. 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.
	 
	 	(g)	 	After consultation with the Borrower, the Majority Lenders may, by notice to
the Administrative Agent, require it to resign in accordance with paragraph (b) above.
In this event, the Administrative Agent shall resign in accordance with paragraph (b)
above.






	23.12	 	Confidentiality






	 	(a)	 	In acting as Administrative Agent for the Finance Parties, the Administrative
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.
	 
	 	(b)	 	If information is received by another division or department of the
Administrative Agent, it may be treated as confidential to that division or department
and the Administrative Agent shall not be deemed to have notice of it.




51









 












	23.13	 	Relationship with the Lenders






	 	(a)	 	The Administrative 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.
	 
	 	(b)	 	Each Lender shall supply the Administrative Agent with any information
required by the Administrative Agent in order to calculate the Mandatory Cost in
accordance with Schedule 4 (Mandatory Cost Formula).






	23.14	 	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 Administrative
Agent and the Arranger that it has been, and will continue to be, solely responsible for
making its own independent appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited to:






	 	(a)	 	the financial condition, status and nature of each member of the Group;
	 
	 	(b)	 	the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document and any other agreement, arrangement or document entered into, made
or executed in anticipation of, under or in connection with any Finance Document;
	 
	 	(c)	 	whether that Lender has recourse, and the nature and extent of that recourse,
against any Party or any of its respective assets under or in connection with any
Finance Document, the 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
	 
	 	(d)	 	the adequacy, accuracy and/or completeness of any information provided by the
Administrative 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.






	23.15	 	[Reserved]
	 
	23.16	 	[Reserved]
	 
	23.17	 	Deduction from Amounts Payable by the Administrative Agent
	 
	 	 	If any Party owes an amount to the Administrative Agent under the Finance Documents the
Administrative Agent may, after giving notice to that Party, deduct an amount not




52









 






	 	 	exceeding
that amount from any payment to that Party which the Administrative 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.
	 
	24.	 	CONDUCT OF BUSINESS BY THE FINANCE PARTIES
	 
	 	 	No provision of this Agreement 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
	 
	 	(c)	 	oblige any Finance Party to disclose any information relating to its affairs
(tax or otherwise) or any computations in respect of Tax.






	25.	 	SHARING AMONG THE FINANCE PARTIES
	 
	25.1	 	Payments to Finance Parties
	 
	 	 	If a Finance Party (a “Recovering Finance Party”) receives or recovers any amount from an
Obligor other than in accordance with Clause 26 (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 Administrative Agent;
	 
	 	(b)	 	the Administrative 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 Administrative Agent and distributed
in accordance with Clause 26 (Payment Mechanics), without taking account of any Tax
which would be imposed on the Administrative Agent in relation to the receipt,
recovery or distribution; and
	 
	 	(c)	 	the Recovering Finance Party shall, within three Business Days of demand by
the Administrative Agent, pay to the Administrative Agent an amount (the “Sharing
Payment”) equal to such receipt or recovery less any amount which the Administrative
Agent determines may be retained by the Recovering Finance Party as its share of any
payment to be made, in accordance with Clause 26.5 (Partial Payments).






	25.2	 	Redistribution of Payments
	 
	 	 	The Administrative 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 26.5 (Partial Payments).




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	25.3	 	Recovering Finance Party’s Rights






	 	(a)	 	On a distribution by the Administrative Agent under Clause 25.2
(Redistribution of Payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the redistribution.
	 
	 	(b)	 	If and to the extent that the Recovering Finance Party is not able to rely on
its rights under paragraph (a) 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.






	25.4	 	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 25.2 (Redistribution of Payments) shall, upon request of the
Administrative Agent, pay to the Administrative 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
	 
	 	(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.






	25.5	 	Exceptions






	 	(a)	 	This Clause 25 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.
	 
	 	(b)	 	A Recovering Finance Party is not obliged to share with any other Finance
Party any amount which the Recovering Finance Party has received or recovered as a
result of taking legal or arbitration proceedings, if:






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






54









 






SECTION 10

ADMINISTRATION




26. PAYMENT MECHANICS



26.1 Payments to the Administrative Agent





	 	(a)	 	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 make the same available to the
Administrative 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 Administrative
Agent as being customary at the time for settlement of transactions in the relevant
currency in the place of payment.
	 
	 	(b)	 	Payment shall be made to such account in the principal financial centre of
the country of that currency with such bank as the Administrative Agent specifies.





26.2 Distributions by the Administrative Agent





Each payment received by the Administrative Agent under the Finance Documents for another
Party shall, subject to Clause 26.3 (Distributions to an Obligor) and Clause 26.4 (Clawback)
be made available by the Administrative 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 Administrative Agent by not less than five Business Days’ notice with a bank in the
principal financial centre of the country of that currency.



26.3 Distributions to an Obligor





The Administrative Agent may (with the consent of the Obligor or in accordance with Clause
27 (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.



26.4 Clawback





	 	(a)	 	Where a sum is to be paid to the Administrative Agent under the Finance
Documents for another Party, the Administrative Agent is not obliged to pay that sum
to that other Party (or to enter into or perform any related exchange contract) until
it has been able to establish to its satisfaction that it has actually received that
sum.
	 
	 	(b)	 	If the Administrative Agent pays an amount to another Party and it proves to
be the case that the Administrative 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 Administrative Agent shall on demand refund the same to the




55









 












	 	 	 	Administrative
Agent together with interest on that amount from the date of payment to the date of
receipt by the Administrative Agent, calculated by the Administrative Agent to reflect
its cost of funds.





26.5 Partial Payments





	 	(a)	 	If the Administrative Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor under the Finance
Documents, the Administrative Agent shall apply that payment towards the Obligations
of that Obligor under the Finance Documents in the following order:






	 	(i)	 	first, in or towards payment pro rata of any unpaid fees, costs
and expenses of the Administrative Agent under the Finance Documents;
	 
	 	(ii)	 	secondly, in or towards payment pro rata of any accrued
interest, fee or commission due but unpaid under this Agreement;
	 
	 	(iii)	 	thirdly, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and
	 
	 	(iv)	 	fourthly, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.






	 	(b)	 	The Administrative Agent shall, if so directed by the Majority Lenders, vary
the order set out in paragraphs (a)(ii) to (iv) above.
	 
	 	(c)	 	Paragraphs (a) and (b) above will override any appropriation made by an
Obligor.





26.6 No Set-off by the Borrower





All payments to be made by the Borrower under this Agreement shall be calculated and be made
without (and free and clear of any deduction for) set-off or counterclaim.



26.7 Business Days





	 	(a)	 	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).
	 
	 	(b)	 	During any extension of the due date for payment of any principal or Unpaid
Sum under this Agreement interest is payable on the principal or Unpaid Sum at the
rate payable on the original due date.





26.8 Currency of Account





	 	(a)	 	Subject to paragraphs (b) and (c) below, US dollars is the currency of
account and payment for any sum due from the Borrower under this Agreement.




56









 












	 	(b)	 	Each payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are incurred.
	 
	 	(c)	 	Any amount expressed to be payable in a currency other than US dollars shall
be paid in that other currency.





26.9 Change of Currency





	 	(a)	 	Unless otherwise prohibited by law, if more than one currency or currency
unit are at the same time recognised by the central bank of any country as the lawful
currency of that country, then:






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






	 	(b)	 	If a change in any currency of a country occurs, this Agreement will, to the
extent the Administrative Agent (acting reasonably and after consultation with the
Borrower) specifies to be necessary, be amended to comply with any generally accepted
conventions and market practice in the Relevant Interbank Market and otherwise to
reflect the change in currency.





27. SET-OFF





A Finance Party at any time after the occurrence of an Event of Default which remains
continuing 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 obligation at a then prevailing market rate
of exchange as determined by it acting reasonably in its usual course of business for the
purpose of the set-off.



28. NOTICES



28.1 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.



57









 





28.2 Addresses





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 Borrower, that identified with its name below;
	 
	 	(b)	 	in the case of each Lender or any other Obligor, that notified in writing to
the Administrative Agent on or prior to the date on which it becomes a Party; and
	 
	 	(c)	 	in the case of the Administrative Agent, that identified with its name below,
	 
	 	(d)	 	or any substitute address or fax number or department or officer as the Party
may notify to the Administrative Agent (or the Administrative Agent may notify to the
other Parties, if a change is made by the Administrative Agent) by not less than five
Business Days’ notice.





28.3 Delivery





	 	(a)	 	Any communication or document made or delivered by one person to another
under or in connection with the Finance Documents will only be effective:






	 	(i)	 	if by way of fax, when received in legible form; or
	 
	 	(ii)	 	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 28.2 (Addresses), if addressed to that department or
officer.




	 	(b)	 	Any communication or document to be made or delivered to the Administrative
Agent will be effective only when actually received by the Administrative Agent and
then only if it is expressly marked for the attention of the department or officer
identified with the Administrative Agent’s signature below (or any substitute
department or officer as the Administrative Agent shall specify for this purpose).
	 
	 	(c)	 	All notices from or to an Obligor shall be sent through the Administrative
Agent.
	 
	 	(d)	 	Any communication or document made or delivered to the Borrower in accordance
with this Clause will be deemed to have been made or delivered to each of the
Obligors.





58









 










28.4 Notification of Address and Fax Number





	 	 	 	Promptly upon receipt of notification of an address or fax number or change of address or
fax number pursuant to Clause 28.2 (Addresses) or changing its own address or fax number,
the Administrative Agent shall notify the other Parties.





28.5 Electronic Communication





	 	(a)	 	Any communication to be made between the Administrative Agent and a Lender
under or in connection with the Finance Documents may be made by electronic mail or
other electronic means, if the Administrative Agent and the relevant Lender:






	 	(i)	 	agree that, unless and until notified to the contrary, this is
to be an accepted form of communication;
	 
	 	(ii)	 	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
	 
	 	(iii)	 	notify each other of any change to their address or any other
such information supplied by them.






	 	(b)	 	Any electronic communication made between the Administrative Agent and a
Lender will be effective only when actually received in readable form and in the case
of any electronic communication made by a Lender to the Administrative Agent only if
it is addressed in such a manner as the Administrative Agent shall specify for this
purpose.





28.6 English Language





	 	(a)	 	Any notice given under or in connection with any Finance Document must be in
English.
	 
	 	(b)	 	All other documents provided under or in connection with any Finance Document
must be:






	 	(i)	 	in English; or
	 
	 	(ii)	 	if not in English, and if so required by the Administrative
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.





59









 










29. CALCULATIONS AND CERTIFICATES



29.1 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.



29.2 Certificates and Determinations





Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is prima facie evidence to the
matters to which it relates.



29.3 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 Relevant Interbank Market differs, in
accordance with that market practice.



30. 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.



31. REMEDIES AND WAIVERS





No failure to exercise, nor any delay in exercising, on the part of any Finance 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.



32. AMENDMENTS AND WAIVERS



32.1 Required Consents





	 	(a)	 	Subject to Clause 32.2 (Exceptions) any term of the Finance Documents may be
amended or waived only with the consent of the Majority Lenders and the Obligors and
any such amendment or waiver will be binding on all Parties.
	 
	 	(b)	 	The Administrative Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.




60









 











32.2 Exceptions





	 	(a)	 	An amendment or waiver that has the effect of changing or which relates to:






	 	(i)	 	the definition of “Majority Lenders” in Clause 1.1
(Definitions);
	 
	 	(ii)	 	an extension to the date of payment of any amount under the
Finance Documents;
	 
	 	(iii)	 	a reduction in the Margin or a reduction in the amount of any
payment of principal, interest, fees or commission payable;
	 
	 	(iv)	 	an increase in or an extension of any Commitment;
	 
	 	(v)	 	any provision which expressly requires the consent of all the
Lenders;
	 
	 	(vi)	 	Clause 2.3 (Finance Parties’ Rights and Obligations), Clause 22
(Changes to the Lenders), Clause 25 (Sharing) or this Clause 32; or
	 
	 	(vii)	 	the release of the Parent from the Parent Guaranty,






shall not be made without the prior consent of all the Lenders.




	 	(b)	 	An amendment or waiver which relates to the rights or obligations of the
Administrative Agent or the Arranger may not be effected without the consent of the
Administrative Agent or the Arranger.





33. 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.



SECTION 11

GOVERNING LAW AND ENFORCEMENT




34. GOVERNING LAW





This Agreement is governed by English law.



35. ENFORCEMENT



35.1 Jurisdiction





	 	(a)	 	The courts of England have non-exclusive jurisdiction to settle any dispute
arising out of or in connection with the Finance Documents (including a dispute
regarding the existence, validity or termination of this Agreement) (a “Dispute”).




61









 












	 	(b)	 	The Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.
	 
	 	(c)	 	This Clause 35.1 is for the benefit of the Finance Parties only. As a
result, no Finance Party shall be prevented from taking proceedings relating to a
Dispute in any other courts with jurisdiction. To the extent allowed by law, the
Finance Parties may take concurrent proceedings in any number of jurisdictions.
	 
	 	(d)	 	THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
SITTING IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER FINANCE DOCUMENT,
OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
	 
	 	(e)	 	THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER FINANCE DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (d) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
	 
	 	(f)	 	EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
FINANCE DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY




62









 












	 	 	 	HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND
THE OTHER FINANCE DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.





35.2 Service of Process





Without prejudice to any other mode of service allowed under any relevant law, the Borrower
should procure that each Obligor:




	 	(a)	 	irrevocably appoints Cadence Design Systems Limited with an office at Bagshot
Road, Attention: Office of the General Counsel, Bracknell, Berkshire RG12 0PH, UK as
its agent for service of process in relation to any proceedings before the English
courts in connection with any Finance Document; and irrevocably appoints CT
Corporation System, a WoltersKluwer Company with an office at 111 Eighth Avenue New
York, NY 10011, as its agent for service of process in relation to any proceedings
before the state or federal courts specified in Clause (d) of Clause 35.1
(Jurisdiction) above; and
	 
	 	(b)	 	agrees that failure by a process administrative agent to notify the relevant
Obligor of the process will not invalidate the proceedings concerned.





36. USA PATRIOT ACT NOTICE





Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as applicable, to
identify the Borrower in accordance with the Act.


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




63









 








SCHEDULE 1




THE ORIGINAL PARTIES




Part I




The Obligors




	 	 	 	 	 
	Castlewilder, as Borrower

	 	Registration number (or equivalent, if any)

	 
	 	 	 	 
	 

	 	260382
	 
	 	 	 	 
	Cadence Design Systems, Inc., as Guarantor

	 	Registration number (or equivalent, if any)

	 
	 	 	 	 
	Cadence Technology Limited, as Guarantor

	 	Registration number (or equivalent, if any)

	 
	 	 	 	 
	 

	 	261724






64









 






Part II




The Original Lenders




	 	 	 	 	 
	Name of Original Lender	 	Commitment (USD)
	Bank of America, N.A.
	 	$	59,000,000	 
	 
	 	 	 	 
	Allied Irish Banks Plc
	 	$	21,000,000	 
	 
	 	 	 	 
	BNP Paribas
	 	$	29,500,000	 
	 
	 	 	 	 
	JPMorgan Chase Bank, N.A., London Branch
	 	$	29,500,000	 
	 
	 	 	 	 
	Mizuho Corporate Bank (USA)
	 	$	21,000,000	 
	 
	Total
	 	$	160,000,000.00	 






65









 






SCHEDULE 2




CONDITIONS PRECEDENT




Conditions Precedent to Utilisation




1. OBLIGORS





	 	(a)	 	Such number of original, signed counterparts of the Finance Documents as the
Administrative Agent may request.
	 
	 	(b)	 	A certified copy of the constitutional documents of each Obligor.
	 
	 	(c)	 	A certified copy of a resolution of the board of directors of each Obligor:






	 	(i)	 	approving the terms of, and the transactions contemplated by,
the Finance Documents to which it is a party and resolving that it execute the
Finance Documents to which it is a party;
	 
	 	(ii)	 	authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf; and
	 
	 	(iii)	 	authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices (including, if relevant, any
Utilisation Request and Selection Notice) to be signed and/or despatched by it
under or in connection with the Finance Documents to which it is a party.






	 	(d)	 	A specimen of the signature of each person authorised by the relevant
resolutions referred to in paragraph (b) above.
	 
	 	(e)	 	A certificate of each Guarantor (signed by a Responsible Officer) confirming
that:






	 	(i)	 	no Material Adverse Effect has occurred since January 1, 2005;
	 
	 	(ii)	 	except as specifically disclosed in Prior SEC Filings, no
action, suit, investigation or proceeding is pending or, to the knowledge of
such Guarantor, threatened against it in any court or before any arbitrator or
Governmental Authority that would reasonably be expected to have a Material
Adverse Effect;
	 
	 	(iii)	 	no Default exists or would result from the making of the Loan
under this Agreement; and
	 
	 	(iv)	 	all representations and warranties of such Guarantor contained
in the Finance Documents to which it is party are true and correct.





66









 











	 	(f)	 	A certificate of an authorised signatory of the relevant Obligor certifying
that each document relating to it specified in this Part I of Schedule 2 is correct,
complete and in full force and effect as at a date no earlier than the date of this
Agreement.





2. LEGAL OPINIONS





	 	(a)	 	A legal opinion of Bird & Bird, legal advisers to the Borrower in England,
substantially in the form distributed to the Administrative Agent, the Arranger and the
Original Lenders prior to signing this Agreement.
	 
	 	(b)	 	A legal opinion of Gibson Dunn & Crutcher, legal advisers to the Obligors in
the United States of America, substantially in the form distributed to the
Administrative Agent, the Arranger and the Original Lenders prior to the signing of
this Agreement.
	 
	 	(c)	 	A legal opinion of Landwell, legal advisers to the Borrower and the Guarantors
in The Republic of Ireland, substantially in the form distributed to the Administrative
Agent, the Arranger and the Original Lenders prior to the signing of this Agreement.





3. OTHER DOCUMENTS AND EVIDENCE





	 	(a)	 	Evidence that any process agent referred to in Clause 35.2 (Service of
Process), if not an Obligor, has accepted its appointment.
	 
	 	(b)	 	A copy of any other Authorisation or other document, opinion or assurance which
the Administrative Agent reasonably considers to be necessary or desirable (if it has
notified the Borrower accordingly) in connection with an Obligor’s entry into and
performance of the transactions contemplated by any Finance Document to which it is
party or for the validity and enforceability of any Finance Document to which it is
party.
	 
	 	(c)	 	The Original Financial Statements of the Borrower and the audited financial
statements of the Parent for the fiscal year ended January 1, 2005.
	 
	 	(d)	 	Interim Financial Statements of the Parent dated as at the end of the most
recent fiscal quarter for which financial statements are available.
	 
	 	(e)	 	Evidence that the fees, costs and expenses then due from the Borrower pursuant
to Clause 11 (Fees) and Clause 16 (Costs and Expenses) will be paid on the first
Utilisation Date.
	 
	 	(f)	 	Confirmation from the Administrative Agent on behalf of the Finance Parties
that the Lenders have completed a due diligence investigation of the Obligors and their
Subsidiaries and the results of such investigations are satisfactory to the Finance
Parties.




67









 












	 	(g)	 	Confirmation from the Administrative Agent that it has received in form and
substance reasonably satisfactory to it, such other documents, reports, audits or
certifications it may reasonably request.





68









 










SCHEDULE 3




REQUESTS AND NOTICES




Part I




Utilisation Request




	 	 	 
	From:

	 	Castlewilder
	 
	 	 
	To:

	 	Bank of America, N.A., as Administrative Agent
	 
	 	 
	Dated:

	 	[·]
	 
	 	 
	Dear Sirs
	 	 






Castlewilder – US$160,000,000 Term Facility Agreement

dated 19 December 2005 (the “Agreement”)





	1.	 	We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement
have the same meaning in this Utilisation Request unless given a different meaning in this
Utilisation Request.
	 
	2.	 	We wish to borrow the Loan on the following terms:





	 	 	 
	Proposed Utilisation Date:

	 	[·] (or, if that is not a Business Day,
the next Business Day)
	 
	 	 
	Amount:

	 	[·]
being the Available Facility
	 
	 	 
	Type:

	 	[LIBOR Loan] [Base Rate Loan]
	 
	 	 
	Interest Period (if applicable):

	 	[·]







	3.	 	We confirm that each condition specified in Clause 4.2 (Further Conditions Precedent) is
satisfied on the date of this Utilisation Request.
	 
	4.	 	The proceeds of the Loan should be credited to [account].
	 
	5.	 	This Utilisation Request is irrevocable.





Yours faithfully



 



authorised signatory for



Castlewilder




69









 








Part II




Selection Notice




	 	 	 
	From:

	 	Castlewilder
	 
	 	 
	To:

	 	Bank of America, N.A., as Administrative Agent
	 
	 	 
	Dated:
	 	 
	 
	 	 
	Dear Sirs
	 	 






Castlewilder
– US$160,000,000 Term Facility Agreement

dated 19 December 2005 (the “Agreement”)





	1.	 	We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have
the same meaning in this Selection Notice unless given a different meaning in this Selection
Notice.
	 
	2.	 	We refer to the Loan [with an Interest Period ending on
[·]].
	 
	3.	 	[We request that the next Interest Period for the above
Loan[s] is
[·].]
	 
	4.	 	We request a conversion of the Loan to a [Base Rate Loan] [LIBOR Loan having an Interest
Period of [·]].
	 
	5.	 	This selection notice is irrevocable.





Yours faithfully



 



authorised signatory for



Castlewilder




70









 








SCHEDULE 4




MANDATORY COST FORMULA





	1.	 	The Mandatory Cost is an addition to the interest rate to compensate Lenders for the cost of
compliance with (a) the requirements of the Bank of England and/or the Financial Services
Authority (or any other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank, or (c) the requirements of the Irish Financial
Services Regulatory Authority.
	 
	2.	 	On the first day of each Interest Period (or as soon as possible thereafter) the
Administrative 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 Administrative 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 Administrative Agent. This
percentage will be certified by that Lender in its notice to the Administrative Agent to be
its reasonable determination of the cost (expressed as a percentage of that Lender’s
participation in the Loan made from that Facility Office) of complying with the minimum
reserve requirements of the European Central Bank and/or the central bank of the relevant
Participating Member State in respect of the Loan 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 Administrative Agent as follows:





	 	 	 
	E x 0.01

 

	 	 
	300	 	per cent per annum






	 	 	 	 	 
	 

	 	Where:	 	 
	 
	 	 	 	 
	 

	 	E
	 	is designed to compensate the Lenders for amounts payable under the Fees Rules
and is calculated by the Administrative Agent as being the average of the most recent
rates of charge supplied by the Lenders to the Administrative Agent pursuant to
paragraph 6 below and expressed in pounds per £1,000,000.






5. For the purposes of this Schedule:





	 	 	 	(a) “Fees Rules” means the rules on periodic fees contained in the FSA Supervision
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;
	 
	 	 	 	(b) “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




71









 












	 	 	 	required pursuant to the Fees Rules but taking into account any applicable discount
rate);






	 	 	 	(c) “Tariff Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules; and
	 
	 	(d)	 	“£” means pounds sterling, the lawful currency for the time being of the United
Kingdom.






	6.	 	If requested by the Administrative Agent, each Lender with a Facility Office in the United
Kingdom or a Participating Member State shall, as soon as practicable after publication by the
Financial Services Authority, supply to the Administrative Agent, the rate of charge payable
by that Lender to the Financial Services Authority pursuant to the Fees Rules in respect of
the relevant fiscal year of the Financial Services Authority (calculated for this purpose by
that Lender as being the average of the Fee Tariffs applicable to that Lender for that fiscal
year) and expressed in pounds per £1,000,000 of the Tariff Base of that Lender.






	7.	 	Each Lender shall supply any information required by the Administrative 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:






	 	(a)	 	the jurisdiction of its Facility Office; and
	 
	 	(b)	 	any other information that the Administrative Agent may reasonably require for
such purpose.
	 
	 	 	 	Each Lender shall promptly notify the Administrative Agent of any change to the information
provided by it pursuant to this paragraph.






	8.	 	The rates of charge of each Lender for the purpose of E above shall be determined by the
Administrative Agent based upon the information supplied to it pursuant to paragraph 6 above.






	9.	 	The Administrative 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 pursuant to paragraphs 3, 6 and 7 above is
true and correct in all respects.






	10.	 	The Administrative 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 pursuant to paragraphs 3, 6 and 7 above.




72









 












	11.	 	Any determination by the Administrative 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.






	12.	 	The Administrative Agent may from time to time, after consultation with the Borrower 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 (pursuant to the Bank of England Act 1998 or (as
may be appropriate) by the Bank of England itself), 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.




73









 











SCHEDULE 5




FORM OF TRANSFER CERTIFICATE




	 	 	 
	To:

	 	Bank of America, N.A., as Administrative Agent
	 
	 	 
	From:

	 	[The Existing Lender] (the “Existing Lender”) and [The New Lender]
(the “New Lender”)
	 
	 	 
	Dated:

	 	[·]






Castlewilder
– US$160,000,000 Term Facility Agreement

dated 19 December 2005 (the “Agreement”)





	1.	 	We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement
have the same meaning in this Transfer Certificate unless given a different meaning in this
Transfer Certificate.






	2.	 	We refer to Clause 22.5 (Procedure for Transfer):






	 	(a)	 	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 22.5 (Procedure for Transfer).
	 
	 	(b)	 	The proposed Transfer Date is
[·].
	 
	 	(c)	 	The Facility Office and address, fax number and attention details for notices
of the New Lender for the purposes of Clause 28.2 (Addresses) are set out in the
Schedule.






	3.	 	The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations
set out in paragraph (c) of Clause 22.4 (Limitation of Responsibility of Existing Lenders).






	4.	 	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.






	5.	 	This Transfer Certificate is governed by English law.




74









 











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 Administrative Agent and the Transfer Date is
confirmed as [·]




	 	 	 
	Bank of America, N.A.,
	 	 
	as Administrative Agent
	 	 
	 
	 	 
	By:
	 	 
	 
	 	 
	 


	 	 






75









 






SCHEDULE 6




EXISTING SECURITY




NONE.




76









 








SCHEDULE 7




MATERIAL SUBSIDIARIES AND EQUITY INTERESTS




	 	 	 
	 	 	Names of Shareholders and
	Name of Material Subsidiary	 	Percentage Shareholding
	Cadence Group

	 	Castlewilder – 100%
	 
	 	 
	Cadence Design Systems (Ireland) Limited

	 	Cadence Group – 100%
	 
	 	 
	Cadence Design Systems Limited

	 	Cadence Design Systems (Ireland)
	 

	 	Limited – 100%
	 
	 	 
	Cadence Design Systems (Japan) B.V.

	 	Cadence Design Systems Limited – 100%
	 
	 	 
	Cadence Design Systems (Cyprus) Ltd.

	 	Castlewilder – 100%
	 
	 	 
	Cadence Design Systems Kft.

	 	Cadence Design Systems (Cyprus)
	 

	 	Ltd. – 96.2%
	 
	 	 
	 

	 	Castlewilder – 3.8%
	 
	 	 
	Cadence Technology Ltd.

	 	Castlewilder – 100%






77









 






SCHEDULE 8




FORM OF PARENT GUARANTY




Please see attached.




78









 





SCHEDULE 9




FORM OF CTL GUARANTY




Please see attached.




79









 





SIGNATORIES




	 	 	 	 	 	 	 
	THE BORROWER	 	 
	 
	 	 	 	 	 	 
	CASTLEWILDER	 	 
	 
	 	 	 	 	 	 
	By:
	 	/s/ R.L. Smith McKeithen
	 	 	 	 	 
	 

	 	Name:	 	R.L. Smith McKeithen	 	 
	 

	 	Title:	 	Director	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	Wilton Place,	 	 
	 

	 	 	 	Dublin 2	 	 
	 

	 	 	 	Ireland	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:	 	Office of the General Counsel	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	+ 353-1-805-4310
 

	 	 
	 
	 	 	 	 	 	 
	With a copy of all notices to the Borrower to be delivered:	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	Cadence Design Systems, Inc.	 	 
	 

	 	 	 	2655 Seely Avenue	 	 
	 

	 	 	 	San Jose, California 95134	 	 
	 

	 	 	 	USA	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	+1 (408) 944-7168	 	 






Signature Page 1 to Term Facility Agreement









 






	 	 	 	 	 	 	 
	THE ADMINISTRATIVE AGENT	 	 
	 
	 	 	 	 	 	 
	BANK OF AMERICA, N.A.,	 	 
	as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	By:
	 	/s/ Tiffany Shin
	 	 	 	 	 
	 

	 	Name:	 	Tiffany Shin	 	 
	 

	 	Title:	 	Assistant Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	(Notices for Payments and Requests for Credit Extensions):	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	Bank of America, N.A.	 	 
	 

	 	 	 	Credit Services West	 	 
	 

	 	 	 	Mail Code: CA4-702-02-25	 	 
	 

	 	 	 	2001 Clayton Road	 	 
	 

	 	 	 	Floor 2, Building B	 	 
	 

	 	 	 	Concord, California 94520-2405	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	(888) 969-9267	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	Shelby Boganwright	 	 
	 
	 	 	 	 	 	 
	 	 	(Other Notices as Administrative Agent):	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	Bank of America, N.A.	 	 
	 

	 	 	 	Agency Management	 	 
	 

	 	 	 	Mail Code: WA1-501-37-20	 	 
	 

	 	 	 	800 Fifth Avenue, Floor 37	 	 
	 

	 	 	 	Seattle, Washington 98104	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	(206) 358-0971	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	Tiffany Shin	 	 






Signature Page 2 to Term Facility Agreement










 






THE LENDERS



BANK OF AMERICA, N.A.




	 	 	 	 	 	 	 
	By:
	 	/s/ Fred L. Thorne
	 	 	 	 	 
	 

	 	Name:	 	Fred L. Thorne	 	 
	 

	 	Title:	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	(Notices for Payments and Requests for Credit Extensions):	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	Bank of America, N.A.	 	 
	 

	 	 	 	Credit Services West	 	 
	 

	 	 	 	Mail Code: CA4-702-02-25	 	 
	 

	 	 	 	2001 Clayton Road	 	 
	 

	 	 	 	Floor 2, Building B	 	 
	 

	 	 	 	Concord, California 94520-2405	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	(888) 969-9267	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	Shelby Boganwright	 	 
	 
	 	 	 	 	 	 
	 	 	(Other Notices):	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	Bank of America, N.A.	 	 
	 

	 	 	 	Mail Code: CA5-801-13-09	 	 
	 

	 	 	 	600 Montgomery Street,
13th Floor	 	 
	 

	 	 	 	San Francisco, California
94111-2702	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	(415) 627-2370	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	Fred Thorne	 	 






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ALLIED IRISH BANKS, P.L.C.




	 	 	 	 	 	 	 
	By:
	 	/s/ Norman M. Fitzgerald
	 	 	 	 	 
	 

	 	Name:	 	Norman M. Fitzgerald	 	 
	 

	 	Title:	 	Senior Manager	 	 
	 
	 	 	 	 	 	 
	 	 	(Notices for Payments and Requests for Credit Extensions):	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	Iona House	 	 
	 

	 	 	 	152 Shelbourne Road	 	 
	 

	 	 	 	Ballsbridge	 	 
	 

	 	 	 	Dublin 4	 	 
	 

	 	 	 	Ireland	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	+ 353 1 6603529	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	Patrick O’Keeffe	 	 
	 
	 	 	 	 	 	 
	 	 	(Other Notices):	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	AIB International Corporate Banking	 	 
	 

	 	 	 	Bankcentre – Block C1	 	 
	 

	 	 	 	Ballsbridge	 	 
	 

	 	 	 	Dublin 4	 	 
	 

	 	 	 	Ireland	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	+ 353 1 6682508	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	Norman Fitzgerald	 	 






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BNP PARIBAS




	 	 	 	 	 	 	 
	By:
	 	/s/ Matthew Harvey
	 	 	 	 	 
	 

	 	Name:	 	Matthew Harvey	 	 
	 

	 	Title:	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	By:
	 	/s/ Sandra F. Bertram
	 	 	 	 	 
	 

	 	Name:	 	Sandra F. Bertram	 	 
	 

	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	(Notices for Payments and Requests for Credit Extensions):	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	BNP Paribas	 	 
	 

	 	 	 	919 3rd Avenue	 	 
	 

	 	 	 	New York, New York 10022	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	(212) 841-2682	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	Tom Kunz	 	 
	 
	 	 	 	 	 	 
	 	 	(Other Notices):	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	BNP Paribas	 	 
	 

	 	 	 	One Front Street, 23rd Floor	 	 
	 

	 	 	 	San Francisco, California 94111	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	(415) 398 8462	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	Patricia Boussaroque	 	 






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JPMORGAN CHASE BANK, N.A., LONDON BRANCH




	 	 	 	 	 	 	 
	By:
	 	/s/ David F. Gibbs
	 	 	 	 	 
	 

	 	Name:	 	David F. Gibbs	 	 
	 

	 	Title:	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	(Notices for Payments and Requests for Credit Extensions):	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	JPMorgan Chase Bank	 	 
	 

	 	 	 	1111 Fannin Street	 	 
	 

	 	 	 	9th Floor	 	 
	 

	 	 	 	Houston, Texas 77002	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	(713) 374-4313	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	Kabinet Kaba	 	 
	 
	 	 	 	 	 	 
	 	 	(Other Notices):	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	JPMorgan Chase Bank	 	 
	 

	 	 	 	277 Park Avenue, 16th Floor	 	 
	 

	 	 	 	New York, New York 10172	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	(646) 534-3078	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	Anthony Galea	 	 






Signature Page 6 to Term Facility Agreement










 






MIZUHO CORPORATE BANK (USA)




	 	 	 	 	 	 	 
	By:
	 	/s/ Bertram Tang
	 	 	 	 	 
	 

	 	Name:	 	Bertram Tang	 	 
	 

	 	Title:	 	Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	(Notices for Payments and Requests for Credit Extensions):	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	Mizuho Corporate Bank (USA)	 	 
	 

	 	 	 	1800 Plaza Ten	 	 
	 

	 	 	 	Harborside Financial Ctr.	 	 
	 

	 	 	 	Jersey City, New Jersey 07311	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	(201) 626-9941	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	Hemangini Divatia	 	 
	 
	 	 	 	 	 	 
	 	 	(Other Notices):	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	Mizuho Corporate Bank (USA)	 	 
	 

	 	 	 	1251 Avenue of the Americas	 	 
	 

	 	 	 	New York, New York 10020-1104	 	 
	 
	 	 	 	 	 	 
	 

	 	Facsimile:
	 	(212) 282-4488	 	 
	 
	 	 	 	 	 	 
	 

	 	Attention:
	 	Paulo Ferreira	 	 







Signature Page 7 to Term Facility Agreement