Exhibit
4.15


 


CONFORMED COPY


 


AGREEMENT


 


8 FEBRUARY 2007

(as amended by a side letter between the Obligors’ Agent

and the Facility Agent dated 4 July 2007)


 


US$1,900,000,000


 


CREDIT FACILITIES


 


for


 


IMPERIAL TOBACCO
FINANCE PLC

IMPERIAL TOBACCO FINANCE (2) PLC

IMPERIAL TOBACCO ENTERPRISE FINANCE LIMITED

as Borrowers


 


and


 


IMPERIAL TOBACCO
GROUP PLC

IMPERIAL TOBACCO LIMITED

as Guarantors


 


with


 


CITIGROUP GLOBAL
MARKETS LIMITED

THE ROYAL BANK OF SCOTLAND PLC

as Mandated Lead Arrangers


 


THE ROYAL BANK OF
SCOTLAND PLC

as Issuing Bank


 


and


 


THE ROYAL BANK OF
SCOTLAND PLC

as Facility Agent


 


 





 


Allen & Overy LLP


 

















 


CONTENTS


 


	
  Clause

  	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
  1.

  	
   

  	
  Interpretation

  	
   

  	
  1

  
	
  2.

  	
   

  	
  Facilities

  	
   

  	
  14

  
	
  3.

  	
   

  	
  Purpose

  	
   

  	
  15

  
	
  4.

  	
   

  	
  Conditions Precedent and Certain Funds

  	
   

  	
  15

  
	
  5.

  	
   

  	
  Utilisation - Loans

  	
   

  	
  17

  
	
  6.

  	
   

  	
  Utilisation – Letters of Credit

  	
   

  	
  18

  
	
  7.

  	
   

  	
  Letters of Credit

  	
   

  	
  20

  
	
  8.

  	
   

  	
  Extension of Original Maturity Date

  	
   

  	
  23

  
	
  9.

  	
   

  	
  Repayment

  	
   

  	
  23

  
	
  10.

  	
   

  	
  Prepayment and Cancellation

  	
   

  	
  23

  
	
  11.

  	
   

  	
  Interest

  	
   

  	
  26

  
	
  12.

  	
   

  	
  Terms

  	
   

  	
  28

  
	
  13.

  	
   

  	
  Market Disruption

  	
   

  	
  29

  
	
  14.

  	
   

  	
  Taxes

  	
   

  	
  30

  
	
  15.

  	
   

  	
  Increased Costs

  	
   

  	
  33

  
	
  16.

  	
   

  	
  Mitigation

  	
   

  	
  34

  
	
  17.

  	
   

  	
  Payments

  	
   

  	
  35

  
	
  18.

  	
   

  	
  Guarantee and Indemnity

  	
   

  	
  37

  
	
  19.

  	
   

  	
  Representations

  	
   

  	
  39

  
	
  20.

  	
   

  	
  Undertakings

  	
   

  	
  41

  
	
  21.

  	
   

  	
  Financial Covenants

  	
   

  	
  47

  
	
  22.

  	
   

  	
  Default

  	
   

  	
  47

  
	
  23.

  	
   

  	
  The Administrative Parties

  	
   

  	
  51

  
	
  24.

  	
   

  	
  Evidence and Calculations

  	
   

  	
  55

  
	
  25.

  	
   

  	
  Fees

  	
   

  	
  55

  
	
  26.

  	
   

  	
  Indemnities and Break Costs

  	
   

  	
  56

  
	
  27.

  	
   

  	
  Expenses

  	
   

  	
  58

  
	
  28.

  	
   

  	
  Amendments and Waivers

  	
   

  	
  58

  
	
  29.

  	
   

  	
  Changes to the Parties

  	
   

  	
  59

  
	
  30.

  	
   

  	
  Disclosure of Information

  	
   

  	
  63

  
	
  31.

  	
   

  	
  Set-off

  	
   

  	
  63

  
	
  32.

  	
   

  	
  Pro rata sharing

  	
   

  	
  63

  
	
  33.

  	
   

  	
  Severability

  	
   

  	
  65

  
	
  34.

  	
   

  	
  Counterparts

  	
   

  	
  65

  
	
  35.

  	
   

  	
  Notices

  	
   

  	
  65

  
	
  36.

  	
   

  	
  Language

  	
   

  	
  67

  
	
  37.

  	
   

  	
  Governing Law

  	
   

  	
  67

  
	
  38.

  	
   

  	
  Jurisdiction

  	
   

  	
  67

  
	
  39.

  	
   

  	
  Waiver of Trial by Jury

  	
   

  	
  68

  



 

















 


	
  Schedule

  	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
  1.

  	
   

  	
  Commitments

  	
   

  	
  3

  
	
  2.

  	
   

  	
  Conditions
  Precedent Documents

  	
   

  	
  3

  
	
   

  	
   

  	
  Part 1

  	
  To be
  delivered before First Request

  	
   

  	
  3

  
	
   

  	
   

  	
  Part 2

  	
  For an Additional
  Guarantor

  	
   

  	
  3

  
	
  3.

  	
   

  	
  Form of Notices

  	
   

  	
  3

  
	
   

  	
   

  	
  Part 1

  	
  Form of Request

  	
   

  	
  3

  
	
   

  	
   

  	
  Part 2

  	
  Form of
  Guarantor Accession Agreement

  	
   

  	
  3

  
	
  4.

  	
   

  	
  Calculation of
  the Mandatory Cost

  	
   

  	
  3

  
	
  5.

  	
   

  	
  Form of Transfer
  Certificate

  	
   

  	
  3

  
	
  6.

  	
   

  	
  Form of
  Compliance Certificate

  	
   

  	
  3

  
	
  7.

  	
   

  	
  Form of Resignation
  Request

  	
   

  	
  3

  
	
  8.

  	
   

  	
  Form of Letter of Credit

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signatories

  	
   

  	
   

  	
   

  	
  3

  



 

















 


THIS
AGREEMENT is dated 8 February 2007


 


BETWEEN:


 


(1)           IMPERIAL TOBACCO FINANCE
PLC (registered number 03214426) (Imperial
Finance), IMPERIAL TOBACCO FINANCE
(2) PLC (registered number 05667337) (Imperial
Finance 2)  and IMPERIAL TOBACCO ENTERPRISE FINANCE LIMITED (registered
number 04856478) (the Borrowers);


 


(2)           IMPERIAL TOBACCO GROUP PLC
(registered number 3236483) (Imperial) and IMPERIAL TOBACCO LIMITED (registered number 01860181)
(together, the Original  Guarantors);


 


(3)           CITIGROUP GLOBAL MARKETS
LIMITED and THE ROYAL BANK OF
SCOTLAND PLC as mandated lead arrangers (the Mandated
Lead Arrangers);


 


(4)           CITIBANK, N.A., LONDON
BRANCH, THE ROYAL BANK OF
SCOTLAND FINANCE (IRELAND) and THE ROYAL BANK OF SCOTLAND
PLC as original lenders (the Original Lenders);


 


(5)           THE
ROYAL BANK OF SCOTLAND PLC as issuing bank (in this
capacity the Issuing Bank); and


 


(6)           THE
ROYAL BANK OF SCOTLAND PLC as facility agent (in this
capacity, the Facility Agent).


 


IT IS
AGREED as follows:


 


1.             INTERPRETATION


 


1.1          Definitions


 


In this
Agreement:


 


Acquisition means the
acquisition by Maui Acquisition Corporation of the Target Shares.


 


Acquisition Agreement means
the stock purchase agreement in respect of the Target Shares entered into
between, amongst others, Maui Acquisition Corporation and Houchens Industries,
Inc..


 


Acquisition Costs means all fees,
costs, expenses, stamp, registration or transfer Taxes incurred by (or required
to be paid by) any member of the Group in connection with the Acquisition.


 


Additional Guarantor
means a member of the Group which becomes a Guarantor after the date of this
Agreement.


 


Administrative Party
means a Mandated Lead Arranger, the Issuing Bank or the Facility Agent.


 


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


 


Availability Period means:


 


(a)           for a Loan, the
period from and including the date of this Agreement to and including the date
falling 120 days after the date of this Agreement; and


 


1

















 


(b)           for a Letter of
Credit, the period from and including the date of this Agreement to and
including the date falling one month prior to the Final Maturity Date.


 


Basel II Framework means the
framework for measuring the capital adequacy of banks in the form set out in
the paper entitled “International Convergence of Capital Measurement and
Capital Standards, a Revised Framework” issued by the Basel Committee on
Banking Supervision in June 2004.


 


Bonds means the
following:


 


	
  Amount (in millions)

  	
   

  	
  Maturity

  	
   

  	
  Issuer

  	
   

  
	
  $600

  	
   

  	
  1 April 2009

  	
   

  	
  Imperial
  Tobacco Overseas B.V.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  €1,500

  	
   

  	
  6 June 2007

  	
   

  	
  Imperial
  Tobacco Finance PLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  £350

  	
   

  	
  13 June 2012

  	
   

  	
  Imperial
  Tobacco Finance PLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  €1,200

  	
   

  	
  22 November
  2013

  	
   

  	
  Imperial
  Tobacco Finance PLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  £450

  	
   

  	
  22 November
  2016

  	
   

  	
  Imperial
  Tobacco Finance PLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  £200

  	
   

  	
  4 December
  2018

  	
   

  	
  Imperial
  Tobacco Finance PLC

  	
   

  



 


Bond Documents means the
agreements and documents to which the Issuer or Imperial Finance are a party
governing the terms of the Bonds or their issue.


 


Break Costs means the amount
(if any) which a Lender is entitled to receive under this Agreement as
compensation if any part of a Loan or overdue amount is prepaid.


 


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


 


Clean-up Period means the period
from the first Utilisation Date to the date falling 45 days thereafter.


 


CNR means the Centre
for Non-Residents of HM Revenue & Customs of the U.K.


 


Commitment means:


 


(a)           for an Original
Lender, the amount set out opposite its name in Schedule 1 (Commitments) under
the heading “Commitments” and the amount of any other Commitment, as so
designated, it acquires; and


 


(b)           for any other
Lender, the amount of any Commitment, as so designated, as it acquires,


 


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


 


Compliance Certificate
means a certificate substantially in the form of Schedule 6 (Form of Compliance
Certificate) setting out, among other things, calculations of the financial
covenants.


 


2

















 


Confidentiality Undertaking
means a confidentiality undertaking substantially in the form recommended by
the Loan Market Association or such other form agreed between the Obligors’
Agent and the Facility Agent.


 


Consolidated Cash and Cash Equivalents
means, at any time:


 


(a)           cash in hand or
on deposit;


 


(b)           bonds, notes or
open market commercial paper:


 


(i)            which mature
within one year after the relevant date of calculation; and


 


(ii)           which have a
credit rating of either A-1 by Standard & Poor’s or Fitch or P-1 by
Moody’s, or, if no rating is available in respect of such commercial paper or
the indebtedness arising in respect thereof, the issuer of which has, in
respect of its long-term debt obligations, an equivalent rating;


 


(c)           Sterling bills of
exchange eligible for rediscount at the Bank of England and accepted by an
acceptable bank;


 


(d)           securities issued
in money market funds where:


 


(i)            those securities
are acquired on terms that they will be acquired or re-acquired by a third
party within one year or not more than three months after demand; and


 


(ii)           the relevant
third party has a short term credit rating of A-1 by Standard & Poor’s or
Fitch or P-1 by Moody’s or, if no short term rating is available in respect of
that third party, an equivalent rating in respect of its long term debt
obligations; or


 


(e)           any other
instrument, security or investment approved by the Majority Lenders,


 


in each case, to
which any member of the Group is beneficially entitled at that time.


 


Consolidated EBITDA means in
relation to the Group for a Measurement Period the consolidated profits on
ordinary activities before taxation for that Measurement Period:


 


(a)           after adding back
Consolidated Net Interest Payable;


 


(b)           before taking into
account any impact from the post-employment benefits charged under IAS 19,
comprising service cost, interest cost, expected return on plan assets, past
service costs and the effect of any settlement or curtailment;


 


(c)           before taking
into account any amount attributable to minority interests;


 


(d)           after adding back
depreciation and amortisation;


 


(e)           before taking
into account any items which are represented by:


 


(i)            profits or losses
on the sale or termination of an operation;


 


(ii)           costs of a
fundamental reorganisation or restructuring having a material effect on the
nature and focus of the reporting entity’s operations; and


 


3

















 


(iii)          profits or losses
on the disposal of fixed assets or any of the items which fall within paragraph
20 of Financial Reporting Standard No. 3,


 


which Imperial
disclosed in the audited consolidated accounts of the Group for the relevant
financial year as items;


 


(f)            before taking
into account any increase or decrease in the fair value of any financial
instrument and any change in the surplus or deficit of any pension scheme
operated by a member of the Group, which in either case is reported through the
income statement; and


 


(g)           after adding back
an amount equal to any Restructuring Costs,


 


and, for the
purposes of Clause 21.2 (Gearing) only, including the Proforma EBITDA of
any business or company acquired during a Measurement Period for the part of
the Measurement Period falling before the effective date of that acquisition.


 


Consolidated Interest Payable
means in relation to a Measurement Period all interest charges, periodic
financing charges and charges in the nature of interest, including acceptance
commission, commitment fee, guarantee fee, fronting fee and the interest
element of rental payments or payments under finance or capital leases
(whether, in each case, paid, payable or capitalised), incurred by the Group in
effecting, servicing or maintaining Consolidated Total Borrowings during that
Measurement Period but excluding such charges, commission, fees and payments
incurred under (a) the Offer Equity Bridge Facilities and (b) the Offer
Facilities.


 


Consolidated Net Interest Payable
means Consolidated Interest Payable less all financing charges and interest
charges received or receivable by the Group during the relevant Measurement
Period.


 


Consolidated Total Borrowings
means, at any time, the aggregate principal amount of the Financial
Indebtedness of the Group falling within paragraphs (a), (b) or (c) of the
definition of that term plus the capital element of all rental payments under
finance or capital leases entered into by any member of the Group but excluding
any Financial Indebtedness under the Offer Facilities or the Offer Equity
Bridge Facilities.


 


Consolidated Total Net Borrowings
means at any time Consolidated Total Borrowings less Consolidated Cash and Cash
Equivalents.


 


Credit
means a Loan or a Letter of Credit.


 


Default means an Event
of Default or an event which, with the giving of notice, lapse of time,
determination of materiality or fulfilment or any other applicable condition
(or any combination of the foregoing), in each case as specified in
Clause 22 (Default), would constitute an Event of Default.


 


Environmental Law means any
applicable law in any jurisdiction in which any member of the Group conducts
business which imposes obligations upon such Group member relating to the
pollution or protection of the environment or harm to or the protection of
human health or the health of animals or plants.


 


Euro and e means the single currency
of the Participating Member States.


 


Event of Default means an event
or circumstance specified as such in Clause 22 (Default).


 


Extension Option means the option
of the Obligors’ Agent to request the Lenders provide the Facility for the Extension
Period in accordance with Clause 8 (Extension of Original Maturity Date).


 


4

















 


Extension Period means a period
from the Original Maturity Date to the date falling 365 days after the Original
Maturity Date.


 


Facility means the credit
facility made available under this Agreement.


 


Facility Office means the
office(s) notified by a Lender to the Facility Agent:


 


(a)           on or before the
date it becomes a Lender; or


 


(b)           by not less than
five Business Days’ notice,


 


as the office(s)
through which it will perform its obligations under this Agreement.


 


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


 


Final Maturity Date means the
Original Maturity Date or, if extended in accordance with the Extension Option,
the date falling 365 days after the Original Maturity Date.


 


Finance Document means:


 


(a)           this Agreement;


 


(b)           a Fee Letter;


 


(c)           a Transfer
Certificate;


 


(d)           the Syndication
Letter; or


 


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


 


Finance Party means a Lender
or an Administrative Party.


 


Financial Indebtedness means
any indebtedness (other than indebtedness owed by one member of the Group to
another member of the Group) in respect of:


 


(a)           moneys borrowed
or raised;


 


(b)           any debenture,
bond, note, loan stock, commercial paper or similar instrument;


 


(c)           any acceptance
credit, bill-discounting, note purchase or other similar facility;


 


(d)           any
counter-indemnity obligation in respect of any guarantee, bond, documentary
letter of credit or other similar instrument issued by a bank or financial
institution;


 


(e)           any finance
lease;


 


(f)            any receivables
purchase, factoring or discounting arrangement under which there is recourse in
whole or in part to any member of the Group;


 


(g)           any currency
swap, or interest rate swap, cap or collar arrangement, option or any other derivative
instrument;


 


5

















 


(h)           any arrangement
entered into primarily as a method of raising finance pursuant to which any
asset sold or otherwise disposed of by that person is or may be leased to or
re-acquired by a member of the Group (whether following the exercise of an
option or otherwise); or


 


(i)            any guarantee,
indemnity or other legally binding assurance against financial loss in respect
of the indebtedness of any person arising under an obligation falling within
(a) to (h) above.


 


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


 


Group means Imperial
and its Subsidiaries for the time being.


 


Guarantor means an
Original Guarantor or an Additional Guarantor.


 


Guarantor  Accession  Agreement means
a letter, substantially in the form of Part 2 of Schedule 3 (Form of Notices),
with such amendments as the Facility Agent may approve or reasonably require.


 


Holding Company means a holding
company within the meaning of section 736 of the Companies Act 1985.


 


IAS 19 means
International Accounting Standard 19 (1998) (Employee
Benefits) issued by the International Accounting Standards Board and
effective at 1 January 1999 (as amended and revised from time to time).


 


Increased Cost means:


 


(a)           an additional or
increased cost;


 


(b)           a reduction in
the rate of return under a Finance Document or on the overall capital of a
Finance Party or any of its Affiliates; or


 


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


 


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


 


Issuer means Imperial
Tobacco Overseas B.V.


 


Lender means:


 


(a)           an Original
Lender; or


 


(b)           any person which
becomes a Lender after the date of this Agreement.


 


Letter of Credit
means a letter of credit substantially in the form of Schedule 8 (Form of
Letter of Credit) or in any other form agreed by the Issuing Bank (acting
reasonably) and the Obligors’ Agent.


 


LIBOR means, for a
Term of any Loan or overdue amount:


 


(a)           the applicable
Screen Rate; or


 


(b)           if no Screen Rate
is available for the relevant currency or Term of that Loan or overdue amount,
the arithmetic mean (rounded upward to four decimal places) of the rates, as


 


6

















 


supplied to the Facility Agent at its request,
quoted by the Reference Banks to leading banks in the London interbank market,


 


in each case, as
of 11.00 a.m. on the Rate Fixing Day for the offering of deposits in the
currency of that Loan or overdue amount for a period comparable to that Term.


 


Litigation Report means (together):


 


(a)           the Form 20-F filed by Imperial
with the Securities and Exchange Commission on 2 February 2007; and


 


(b)           the report dated on or
around 7 February 2007 entitled “Hawaii — Report on Maui Product Liability
Litigation”.


 


Loan means, unless
otherwise stated in this Agreement, the principal amount of each borrowing
under this Agreement or the principal amount outstanding of that borrowing.


 


Majority Lenders means, at any
time, Lenders:


 


(a)           whose share in
the outstanding Credits and whose undrawn Commitments then aggregate 66 2/3% or
more of the aggregate of all the outstanding Credits and the undrawn
Commitments of all the Lenders;


 


(b)           if there is no
Credit then outstanding, whose undrawn Commitments then aggregate 66 2/3% or
more of the Total Commitments; or


 


(c)           if there is no
Credit then outstanding and the Total Commitments have been reduced to zero,
whose Commitments aggregated 66 2/3% or more of the Total Commitments
immediately before that reduction.


 


Mandatory Cost means the cost
of complying with certain regulatory requirements, expressed as a percentage
rate per annum and calculated by the Facility Agent under Schedule 4
(Calculation of the Mandatory Cost).


 


Margin means, subject
to Clause 11.3 (Margin Step-up), the percentage rate per annum as follows:


 


(a)           from (and
including) the date of this Agreement to (and including) the date falling six
months after the date of this Agreement, 0.15 per cent. per annum;


 


(b)           from (but
excluding) the date falling six months after the date of this Agreement to (and
including) the Original Maturity Date, 0.225 per cent. per annum; and


 


(c)           if a Borrower
exercises the Extension Option, from (but excluding) the Original Maturity Date
to (and including) the date falling 365 days after the Original Maturity Date,
0.30 per cent. per annum.


 


Material Adverse Effect
means a material adverse effect on the ability of the Obligors (taken as a
whole and taking into account resources of the Group which would be available
to the Obligors) to perform their obligations under the Finance Documents.


 


Material Company means:


 


(a)           an Obligor;


 


7

















 


(b)           a Principal
Subsidiary;


 


(c)           Tobaccor S.A.;
and


 


(d)           John Player &
Sons Limited.


 


Maturity Date means the last
day of the Term for a Credit.


 


Measurement Period means a period
of 12 months ending on the last day of a financial year or half-year of
Imperial.


 


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


 


Net Proceeds means an amount
equal to the proceeds received by any member of the Group net of fees, costs,
expenses and taxes incurred by members of the Group.


 


Obligor means a Borrower
or a Guarantor.


 


Obligors’ Agent means Imperial
Finance.


 


Offer Equity Bridge Facilities
means any equity bridge facilities agreement to be entered into by, amongst
others, Imperial and Imperial Tobacco Limited relating to the offer for shares
in Tiger.


 


Offer Facilities means any
facilities agreement to be entered into by, amongst others, Imperial Finance,
Imperial Tobacco Enterprise Finance Limited, Imperial and Imperial Tobacco
Limited relating to the offer for shares in Tiger.


 


Original Financial Statements
means the audited consolidated financial statements of the Group for the year
ended 30 September 2006.


 


Original Maturity Date
means the date falling 364 days after the date of this Agreement.


 


Participating Member State
means a member state of the European Communities that adopts or has adopted the
Euro as its lawful currency under the legislation of the European Community for
Economic Monetary Union.


 


Party means a party to
this Agreement.


 


Principal Subsidiary
means:


 


(a)           any Subsidiary of
Imperial whose net assets or pre-tax profit, at any time after the date of this
Agreement, equal or exceed five per cent. (5%) of the consolidated net assets or
adjusted consolidated pre-tax profit of the Group at that time, and for the
purposes of the above:


 


(i)            the consolidated
net assets of the Group shall be the consolidated net assets of the Group
ascertained by reference to the latest audited published consolidated accounts
of the Group;


 


(ii)           the adjusted
consolidated pre-tax profit of the Group shall be the aggregate of:


 


(A)          the consolidated
pre-tax profit of the Group ascertained by reference to the latest audited
published consolidated accounts of the Group; and


 


8

















 


(B)           the consolidated
pre-tax profit (the pre-acquisition profit)
of any Subsidiary which became a member of the Group during the period for
which the latest audited published consolidated accounts of the Group were
prepared (an acquired subsidiary) for the part
of that period which falls before the effective date of such acquisition
calculated in accordance with approved accounting standards used in the
preparation of the latest audited published accounts of the Group;


 


(iii)          the net assets of
any Subsidiary shall be the net assets of that Subsidiary calculated in
accordance with approved accounting standards used in the preparation of the
latest audited published accounts of the Group; and


 


(iv)          the pre-tax
profit of any Subsidiary shall be the pre-taxation profit of that Subsidiary
calculated in accordance with approved accounting standards used in the
preparation of the latest audited published accounts of the Group plus, in the
case of any acquired subsidiary, an amount equal to any pre-acquisition,
pre-tax profit,


 


and for the
purposes of the above, net assets in
respect of the Group or any such Subsidiary means the fixed assets and current
assets of the Group or that Subsidiary (as the case may be); and


 


(b)           a Subsidiary of
Imperial to which has been transferred (whether by one transaction or a series
of transactions, related or not) the whole or substantially the whole of the
assets of a Subsidiary which immediately prior to those transactions was a
Principal Subsidiary.


 


Proforma EBITDA means in
relation to a business or company, the proforma consolidated profits on
ordinary activities before taxation of that business or company, adjusted in
accordance with paragraphs (a) to (f) (inclusive) of the definition of
Consolidated EBITDA, applied mutatis mutandis to
that business or company.


 


Pro rata Share means:


 


(a)           for the purpose
of determining a Lender’s share in a utilisation of the Facility, the
proportion which its undrawn Commitment under that Facility bears to all the
undrawn Commitments under that Facility; and


 


(b)           for any other
purpose on a particular date:


 


(i)            the proportion
which a Lender’s share of the Credits (if any) bears to all the Credits;


 


(ii)           if there are no
Credits outstanding on that date, the proportion which its Commitment bears to
the Total Commitments on that date; or


 


(iii)          if the Total
Commitments have been cancelled, the proportion which its Commitments bore to
the Total Commitments immediately before being cancelled.


 


PTR Scheme means the
Provisional Treaty Relief Scheme operated by CNR and includes any modifications
or republications thereof from time to time.


 


Qualifying Lender means a Lender
which is:


 


(a)           a U.K. Lender;


 


(b)           a Treaty Lender;
or


 


9

















 


(c)           a U.K. Non-Bank
Lender.


 


Rate Fixing Day means the second
Business Day before the first day of a Term for a Loan, or such other day as
the Facility Agent determines is generally treated as the rate fixing day by
market practice in the relevant interbank market.


 


Reference  Bank means each of HSBC Bank PLC, Citibank, N.A., London
Branch and The Royal Bank of Scotland plc and any other bank or financial
institution appointed as such by the Facility Agent following consultation with
the Obligors’ Agent.


 


Repeating
Representations means
the representations which are deemed to be repeated under Clause 19.14
(Times for making Representations).


 


Request means a request
for a Loan and/or a Letter of Credit, substantially in the form of Part 1 of
Schedule 3 (Form of Notices).


 


Reservations means:


 


(a)           the principles
that enforceability may be limited by the laws of administration, liquidation,
insolvency, reorganisation, suretyship or similar laws of general application
affecting creditors’ rights; and


 


(b)           any other general
principles of law referred to in any legal opinion delivered in connection with
the Finance Documents and any qualifications to which any such opinion is
subject.


 


Resignation Request means a letter
substantially in the form of Schedule 7 (Form of Resignation Request).


 


Restructuring Costs means all
non-recurring costs, charges or expenses, including, inter alia,
redundancy and consultancy costs charged to the consolidated profit and loss
account of the Group in connection with the restructuring of the Group or any
of its assets following, and as a result of, an acquisition or investment.


 


Screen Rate means the
British Bankers Association Interest Settlement Rate (if any) for US Dollars
and relevant Term displayed on the appropriate page of the Reuters screen
selected by the Facility Agent. If the relevant page is replaced or the service
ceases to be available, the Facility Agent may (with the agreement of the
Obligors’ Agent) specify another page or service displaying the appropriate
rate.


 


Security Interest means any
mortgage, pledge, lien, charge, assignment, hypothecation or security interest
securing any obligation of any person, or any other agreement or arrangement
having a similar effect, in each case created with the intention of conferring
a security interest.


 


Standard & Poor’s
means Standard & Poor’s Rating Services, a division of The McGraw-Hill
Companies Inc. or any successor to its rating business.


 


Sterling and £ means the lawful currency for the time being of the U.K.


 


Subsidiary means a
subsidiary within the meaning of section 736 of the Companies Act 1985.


 


Syndication Letter means the
syndication letter dated on or about the date of this Agreement between the
Mandated Lead Arrangers and the Obligors’ Agent.


 


Target
means
CBHC, Inc..


 


10

















 


Target Shares means all of the
issued shares (of whatever class) in the capital of the Target together with
all related rights.


 


Tax means any tax,
levy, impost, duty or other charge or withholding of a similar nature
(including any related penalty or interest).


 


Tax Confirmation means a
confirmation by a U.K. Non-Bank Lender that the person beneficially entitled to
payments made to that Lender in respect of an advance under a Finance Document
is either:


 


(a)           a company
resident in the U.K., or a partnership each member of which is a company
resident in the U.K., for U.K. tax purposes; or


 


(b)           a company not so
resident in the U.K. which carries on a trade in the U.K. through a permanent
establishment and those payments in respect of that advance fall to be brought
into account in computing the chargeable profits of that company for the
purposes of section 11(2) of the Income and Corporations Taxes Act, 1988.


 


Tax Credit means a credit
against any Tax or any relief or remission for Tax (or its repayment).


 


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


 


Tax Payment means a payment
made by an Obligor to a Finance Party in any way relating to a Tax Deduction or
under any indemnity given by that Obligor in respect of Tax under any Finance
Document.


 


Term means each
period determined under this Agreement:


 


(a)           by
reference to which interest on a Credit or an overdue amount is calculated; and


 


(b)           for
which the Issuing Bank may be under a liability under a Letter of Credit.


 


Tiger means
Altadis, S.A.


 


Tobacco
Master Settlement Agreement means the tobacco master
settlement agreement dated 28 November 1998 (as amended from time to time)
among 46 of the United States, certain territories of the United States and
certain tobacco companies.


 


Total Commitments means the
aggregate of the Commitments of all the Lenders, being the total amount
identified as such in Schedule 1 (Commitments) at the date of this Agreement.


 


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


 


Transfer Date means, in
respect of a Transfer Certificate, the later of:


 


(a)           the proposed
Transfer Date specified in that Transfer Certificate; and


 


(b)           the date on which
the Facility Agent executes that Transfer Certificate.


 


Treaty Lender means a Lender
which is, on the date a payment of interest falls due under this Agreement:


 


11

















 


(a)           resident (as
defined in the appropriate double taxation agreement) in a country with which
the U.K. has a double taxation agreement and which is entitled to a complete
exemption under that double taxation agreement from U.K. taxation on interest;
and


 


(b)           does not carry on
a business in the U.K. through a permanent establishment with which the payment
is effectively connected,


 


and for this
purpose double  taxation
agreement means any convention or
agreement between the government of the U.K. and any other government for the
avoidance of double taxation and the prevention of fiscal evasion with respect
to taxes on income and capital gains.


 


U.K. means the United
Kingdom of Great Britain and Northern Ireland.


 


U.K. Lender means a Lender
which is within the charge to U.K. corporation tax in respect of, and
beneficially entitled to, a payment of interest on a Loan made by a person that
was a bank for the purposes of section 349 of the Income and Corporation Taxes
Act 1988 (as currently defined in section 840A of the Income and Corporation
Taxes Act 1988) at the time the Loan was made.


 


U.K. Non-Bank Lender
means a Lender which is neither a U.K. Lender nor a Treaty Lender and which is:


 


(a)           a company
resident in the U.K. for U.K. tax purposes;


 


(b)           a partnership
each member of which is a company resident in the U.K., for U.K. tax purposes;
or


 


(c)           a company not so
resident in the U.K. which carries on a trade in the U.K. through a permanent
establishment and which brings into account payments made to it under this
Agreement in computing its chargeable profits for the purposes of section 11(2)
of the Income and Corporations Taxes Act, 1988,


 


and which has
given a Tax Confirmation to the Obligors’ Agent and the Facility Agent.


 


United  States means the United States of America.


 


U.S. Dollars and $ means the lawful currency for the time being of the
United States.


 


Utilisation  Date means each date on which the Facility is utilised.


 


1.2          Construction


 


(a)           In this
Agreement, unless the contrary intention appears, a reference to:


 


(i)            an amendment includes a supplement, novation, restatement or
re-enactment, and amended will be
construed accordingly;


 


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


 


(iii)          an authorisation includes an authorisation, consent, approval,
resolution, licence, exemption, filing, registration or notarisation;


 


(iv)          disposal
means a sale, transfer, grant, lease or other disposal, whether voluntary or
involuntary, and dispose will be construed
accordingly;


 


12

















 


(v)           indebtedness
includes any obligation (whether incurred as principal or as surety) for the
payment or repayment of money;


 


(vi)          know your customer
requirements are the identification checks that a Finance
Party reasonably requests in order to meet its obligations under any applicable
law or regulation to identify a person who is (or is to become) its customer;


 


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


 


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


 


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


 


(x)            a Default being outstanding means that it has not been remedied or waived;


 


(xi)           a provision of
law is a reference to that provision as extended, applied, amended or
re-enacted and includes any subordinate legislation;


 


(xii)          a Clause, a
Subclause or a Schedule is a reference to a clause or subclause of, or a
schedule to, this Agreement;


 


(xiii)         a person includes
its successors in title, permitted assigns and permitted transferees;


 


(xiv)        a Finance
Document or another document is a reference to that Finance Document or other
document as amended; and


 


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


 


(b)           Unless the
contrary intention appears, a reference to a month
or months is a reference to a period
starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month or the calendar month in which it
is to end, except that:


 


(i)            if the
numerically corresponding day is not a Business Day, the period will end on the
next Business Day in that month (if there is one) or the preceding Business Day
(if there is not);


 


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


 


(iii)          notwithstanding
paragraph (i) above, a period which commences on the last Business Day of a
month will end on the last Business Day in the next month or the calendar month
in which it is to end, as appropriate.


 


(c)           (i)            Unless expressly provided to
the contrary in a Finance Document, a person who is not a party to a Finance
Document may not enforce any of its terms under the Contracts (Rights of Third
Parties) Act 1999; and


 


13

















 


(ii)           notwithstanding
any term of any Finance Document, the consent of any third party is not
required for any variation (including any release or compromise of any
liability) or termination of that Finance Document.


 


(d)           Unless the
contrary intention appears:


 


(i)            a reference to a
Party will not include that Party if it has ceased to be a Party under this
Agreement;


 


(ii)           a word or
expression used in any other Finance Document or in any notice given in
connection with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement; and


 


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


 


(e)           The headings in
this Agreement do not affect its interpretation.


 


2.             FACILITIES


 


2.1          Term
Loan Facility


 


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


 


2.2          Letters
of Credit


 


The Facility
includes an option for the Borrowers to request the Issuing Bank to issue
Letters of Credit counter-indemnified by the Lenders in aggregate amount equal
to $20,000,000 of the Total Commitments.


 


2.3          Nature
of a Finance Party’s rights and obligations


 


Unless otherwise
agreed by all the Finance Parties:


 


(a)           the obligations of a Finance
Party under the Finance Documents are several;


 


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


 


(c)           no Finance Party is
responsible for the obligations of any other Finance Party under the Finance
Documents;


 


(d)           the rights of a Finance
Party under the Finance Documents are separate and independent rights;


 


(e)           a debt arising under the
Finance Documents to a Finance Party is a separate and independent debt; and


 


(f)            a Finance Party may, except
as otherwise stated in the Finance Documents, separately enforce those rights.


 


14
















 


3.             PURPOSE


 


3.1          Loan
proceeds


 


Each Loan may
only be used in or towards:


 


(a)           the payment of the purchase
price for all the Target Shares under the Acquisition Agreement;


 


(b)           the Acquisition Costs;


 


(c)           refinancing Financial
Indebtedness of the Target and its Subsidiaries including, without limitation,
any letters of credit issued for their account and any Financial Indebtedness
owed to the Seller (as defined in the Acquisition Agreement);


 


(d)           any purchase price
adjustment payments to be made under the Acquisition Agreement; and


 


(e)           after the completion of the
Acquisition in accordance with the Acquisition Agreement, general corporate
purposes (including, without limitation, making any Tobacco Master Settlement
Agreement payments).


 


3.2          Letters
of Credit


 


Each Letter of
Credit may only be issued for general corporate purposes of the Group.


 


3.3          No
obligation to monitor


 


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


 


4.             CONDITIONS PRECEDENT AND CERTAIN
FUNDS


 


4.1          Definitions


 


In this
Subclause:


 


Major Breach means a breach
of:


 


(a)           Clause 20.10
(Negative pledge);


 


(b)           Clause 20.12
(Disposals); or


 


(c)           Clause 20.17
(Acquisition of Target Shares).


 


Major Default means any of the
following Events of Default but only so far as they relate to an Obligor:


 


(a)           Clause 22.2
(Non-payment);


 


(b)           Clause 22.3
(Breach of other obligations) but only in so far as it relates to a Major
Breach;


 


(c)           Clause 22.5
(Misrepresentation) but only in so far as it relates to a Major Representation;


 


(d)           Clause 22.7
(Insolvency), Clause 22.8 (Winding up), Clause 22.9 (Creditors’ process) or
Clause 22.14 (Cessation of Business); or


 


15

















 


(e)           Clause 22.12
(Unlawfulness) and Clause 22.13 (Repudiation) except to the extent the Event of
Default results from any matter specifically referred to in any legal opinion
referred to in paragraph (b) of the definition of Reservations.


 


Major Representation means
any of the following representations contained in this Agreement but only so
far as they relate to an Obligor:


 


(a)           Clause 19.2
(Status);


 


(b)           Clause 19.3
(Power and authority) but only if this would be reasonably likely to materially
and adversely affect the interests of the Finance Parties, and for this purpose
no misrepresentation shall be deemed to occur if the only circumstances giving
rise to the misrepresentation are those specifically referred to in any legal
opinions referred to in paragraph (b) of the definition of Reservations);


 


(c)           Clause 19.4 (Legal
validity); or


 


(d)           Clause 19.5
(Non-conflict) (other than subparagraph (c) of that clause).


 


4.2          Conditions
precedent to first utilisation of the Facility


 


The Facility may
not be utilised until the Facility Agent has notified the Obligors’ Agent and
the Lenders that it has received all of the documents and evidence set out in
Part 1 of Schedule 2 (Conditions Precedent Documents) in form and substance
satisfactory to the Facility Agent (acting reasonably). The Facility Agent must
give this notification to the Obligors’ Agent and the Lenders promptly upon
being so satisfied.


 


4.3          Further
conditions precedent


 


The obligations
of each Lender to participate in any Loan are subject to the further conditions
precedent that on both the date of the Request and the Utilisation Date for
that Loan:


 


(a)           the Repeating
Representations are correct in all respects; and


 


(b)           no Default is outstanding or
would result from the Loan.


 


4.4          Limitations


 


Unless the
Facility Agent agrees pursuant to Clause 12.3 (Other adjustments) or
otherwise, a Request may not be made (or, if made, shall not be regarded as
having been validly made) if, as a result, there would be more than:


 


(a)           four Loans outstanding; and


 


(b)           10 Letters of Credit
outstanding.


 


4.5          Certain
Funds


 


(a)           Notwithstanding
any term of this Agreement, during the Availability Period for a Loan and in
respect of any Credit for the purposes set out in paragraphs (a)-(c)
(inclusive) of Clause 3.1 (Loan proceeds) no Lender is entitled to:


 


(i)            refuse to
participate in or make available any such Credit;


 


16

















 


(ii)           cancel its
Commitment;


 


(iii)          exercise any
right of rescission or similar right or remedy which it may have in relation to
any such Credit; or


 


(iv)          accelerate or
cause repayment of any such Credit,


 


except as
provided below in this Subclause.


 


(b)           Paragraph (a)
does not apply if the entitlement arises because:


 


(i)            the Obligors’
Agent has not delivered or procured the delivery of all of the documents
required under Clause 4.2 (Conditions precedent to first utilisation of
the Facility) and the delivery of any such documents has not been waived by the
Facility Agent;


 


(ii)           a Major
Representation is not correct or will not be correct immediately after any such
Credit is made;


 


(iii)          a Major Default
is outstanding or will result from the making of any such Credit; or


 


(iv)          it is unlawful
for the Lender to perform any of its obligations under the Finance Documents.


 


(c)           Nothing in this
Subclause will affect the rights of any Finance Party in respect of any
outstanding Default upon expiry of the Availability Period in respect of a
Loan, irrespective of whether that Default occurred during the Availability
Period in respect of a Loan or not.


 


5.             UTILISATION - LOANS


 


5.1          Giving
of Requests


 


(a)           A Borrower may
borrow a Loan by giving to the Facility Agent a duly completed Request.


 


(b)           Unless the
Facility Agent otherwise agrees, the latest time for receipt by the Facility
Agent of a duly completed Request is 11.00 a.m. one Business Day before the
Rate Fixing Day for the proposed borrowing.


 


(c)           Each such Request
is irrevocable.


 


5.2          Completion
of Requests


 


A Request for a
Loan will not be regarded as having been duly completed unless:


 


(a)           it identifies the Borrower;


 


(b)           the Utilisation Date is a
Business Day falling within the relevant Availability Period;


 


(c)           the amount of the Loan
requested is:


 


(i)            a minimum of $5,000,000 and
an integral multiple of 1,000,000 units of that currency;


 


(ii)           the maximum undrawn amount
available under the Facility on the proposed Utilisation Date; or


 


17

















 


(iii)          such other amount as the
Facility Agent may agree;


 


(d)           the proposed currency and
Term comply with this Agreement; and


 


(e)           the payment instructions
comply with Clause 17.1 (Place of Payments).


 


5.3          Advance
of Loan


 


(a)           The Facility
Agent must promptly notify each Lender of the details of the requested Loan and
the amount of its share in that Loan.


 


(b)           The amount of
each Lender’s share of a Loan will be its Pro rata Share on the proposed
Utilisation Date.


 


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


 


(i)            its share in the
Credits would exceed its Commitment; or


 


(ii)           the aggregate
amount of all Credits would exceed the Total Commitments.


 


(d)           If the conditions
set out in this Agreement have been met, each Lender must make its share in the
Loan available to the Facility Agent for the relevant Borrower on the
Utilisation Date.


 


6.             UTILISATION – LETTERS OF CREDIT


 


6.1          Giving
of Requests


 


(a)           A Borrower may
request a Letter of Credit to be issued by giving to the Facility Agent a duly
completed Request.


 


(b)           Unless the
Facility Agent otherwise agrees, the latest time for receipt by the Facility
Agent of a duly completed Request is 11.00 a.m. five Business Days before the
proposed Utilisation Date.


 


(c)           Each Request is
irrevocable.


 


6.2          Completion
of Requests


 


A Request for a
Letter of Credit will not be regarded as being duly completed unless:


 


(a)           it identifies the Borrower;


 


(b)           it specifies that it is for
a Letter of Credit;


 


(c)           the Utilisation Date is a
Business Day falling within the relevant Availability Period;


 


(d)           the amount of the Letter of
Credit requested is:


 


(i)            a minimum amount of $50,000;


 


(ii)           the maximum undrawn amount
available for Letters of Credit under the Facility on the proposed Utilisation
Date; or


 


(iii)          such other amount as the
Facility Agent may agree;


 


(e)           the form of the Letter of
Credit is attached; and


 


18

















 


(f)            the delivery instructions
for the Letter of Credit are specified.


 


6.3          Issue
of the Letter of Credit


 


(a)           The Facility
Agent must promptly notify the Issuing Bank and each Lender of the details of
the requested Letter of Credit and the amount of its share of that Letter of
Credit.


 


(b)           The amount of
each Lender’s share in a Letter of Credit will be its Pro rata Share on the
proposed Utilisation Date.


 


(c)           If the conditions
set out in this Agreement have been met, the Issuing Bank must issue the Letter
of Credit on the Utilisation Date.


 


6.4          Extension
of a Letter of Credit


 


(a)           A Borrower may
request that a Letter of Credit issued on its behalf is extended by delivery to
the Facility Agent of a notice (an LC Extension Notice)
specifying the new proposed Maturity Date (the LC Proposed
Maturity Date). Any LC Extension Notice must be served not less than
three Business Days before the Maturity Date of that Letter of Credit.


 


(b)           The Facility
Agent must promptly notify the Issuing Bank and each Lender of the details of
the extension requested in the LC Extension Notice of the Letter of Credit and
the amount of its share of that Letter of Credit.


 


(c)           The terms of each
extended Letter of Credit will remain the same as before the extension, except
that:


 


(i)            its amount may be
reduced; and


 


(ii)           its Maturity Date
will be the LC Proposed Maturity Date.


 


(d)           If the conditions
set out in this Clause 6.4 (Extension of a Letter of Credit) and Clause 6.5
(Conditions precedent) have been met, the Issuing Bank must extend the Letter
of Credit in the manner requested.


 


6.5          Conditions
precedent


 


(a)           The Issuing Bank
is not obliged to issue or extend any Letter of Credit if as a result:


 


(i)            a Lender’s share
in the Credits would exceed its Commitment; or


 


(ii)           the Credits would
exceed the Total Commitments.


 


(b)           The Issuing Bank
is not obliged to issue or extend any Letter of Credit if either on the date of
the Request or date of the Extension Notice or the Utilisation Date or
extension date:


 


(i)            the Repeating
Representations are not correct in all material respects; and/or


 


(ii)           a Default or in
the case of an extension, an Event of Default is outstanding or would result
from the issue or extension of that Letter of Credit.


 


(c)           The Issuing Bank
has no duty to enquire of any person whether or not any of the conditions
precedent set out in this Subclause have been met. The Issuing Bank may assume
that those conditions have been met unless it is expressly notified to the
contrary by the Facility Agent. The


 


19

















 


Issuing Bank will have no
liability to any person for issuing a Letter of Credit based on any such
assumption.


 


7.             LETTERS OF CREDIT


 


7.1          General


 


(a)           A Letter of
Credit is repaid or prepaid
to the extent that:


 


(i)            a Borrower
provides cash cover for that Letter of Credit;


 


(ii)           the maximum
amount payable under the Letter of Credit is reduced or cancelled in accordance
with its terms; or


 


(iii)          the Letter of
Credit has been returned to the Facility Agent by way of cancellation or the
relevant Issuing Bank is otherwise satisfied that it has no further liability
under that Letter of Credit or that its liability thereunder has been
permanently reduced.


 


The amount by
which a Letter of Credit is repaid or prepaid under sub-paragraphs (i) and (ii)
above is the amount of the relevant cash cover, reduction or cancellation.


 


(b)           If a Letter of
Credit or any amount outstanding under a Letter of Credit becomes immediately
payable under this Agreement, the Borrower that requested the issue of that
Letter of Credit must repay or prepay that amount immediately.


 


(c)           Cash cover is
provided for a Letter of Credit if a Borrower pays an amount in the currency of
the Letter of Credit to an interest-bearing account with a Finance Party in
London in the name of the Borrower and the following conditions are met:


 


(i)            the account is
with the Facility Agent or the Issuing Bank (if, subject as provided below, the
cash cover is to be provided for all the Lenders) or with a Lender (if the cash
cover is to be provided for that Lender);


 


(ii)           until no amount
is or may be outstanding under that Letter of Credit, withdrawals from the
account may only be made:


 


(A)          to pay the
Finance Party for which the cash cover is provided under this Clause or any
amounts due to them under Clause 7.5 (Indemnities); or


 


(B)           if no Default is
outstanding, by the relevant Borrower, to the extent the balance in the account
exceeds the Issuing Banks share of the outstanding amount of the Letter of
Credit; and


 


(iii)          if requested by the
Facility Agent, the Borrower has executed and delivered a security document
over that account, in form and substance satisfactory to the Facility Agent or
the Finance Party (in either case, acting reasonably) for which the cash cover
is provided, creating a first ranking security interest over that account.


 


References to
cash cover exclude any interest accrued on that cash cover.


 


(d)           The outstanding or principal
amount of a Letter of Credit at any time is the maximum amount that is or may
be payable by the relevant Borrower in respect of that Letter of Credit at that
time.


 


(e)           The amount of
cash cover will be ignored in calculating the undrawn Commitment of each
Lender.


 


20

















 


(f)            Any amount
standing to the credit of an account maintained by the Borrower under paragraph
(c) above will bear interest at a normal market rate for deposits of a similar
duration, currency and amount.


 


7.2          Fees
in respect of Letters of Credit


 


(a)           Each Borrower
must pay to the Issuing Bank a fronting fee in respect of each Letter of Credit
requested by it in the manner agreed in the Fee Letter between the Issuing Bank
and the Obligors’ Agent.


 


(b)           Each Borrower
must pay to the Facility Agent for each Lender a letter of credit fee computed
at the rate equal to the then applicable Margin on the outstanding amount of
each Letter of Credit requested by it for the period from the issue of that
Letter of Credit until its Maturity Date. This fee will be distributed
according to each Lender’s Pro rata Share, adjusted to reflect any assignment
or transfer to or by that Lender.


 


(c)           Accrued letter of
credit fee is payable quarterly in arrear (or any shorter period that ends on
the Maturity Date for that Letter of Credit) on the last day of the relevant
quarter (or the Maturity Date for that Letter of Credit, if applicable) and the
date falling five Business Days after the date on which the Obligors’ Agent
receives from the Facility Agent an invoice for such amount. Accrued letter of
credit fee is also payable to the Facility Agent on the cancelled amount of any
Lender’s Commitment at the time the cancellation is effective if that
Commitment is cancelled in full and its participation in the Letters of Credit
is prepaid or repaid in full on the later of the date on which such
cancellation becomes effective and the date falling five Business Days after
the date on which the Obligors’ Agent receives from the Facility Agent an
invoice for such amount.


 


(d)           If a Borrower
provides cash cover for any part of a Letter of Credit, then:


 


(i)            the fronting fee
payable to the Issuing Bank and the letter of credit fee payable for the
account of each Lender in respect of any part of a Letter of Credit which is
the subject of cash cover will continue to be payable until the expiry of that
Letter of Credit; but


 


(ii)           that Borrower
will be entitled to withdraw the interest accrued on the amount of the cash
cover to pay those fees.


 


7.3          Claims
under a Letter of Credit


 


(a)           Each Borrower
irrevocably and unconditionally authorises the Issuing Bank to pay any claim
made or purported to be made under a Letter of Credit requested by it and which
appears on its face to be in order (a claim).


 


(b)           Each Borrower
that requested the issue of a Letter of Credit must promptly pay to the
Facility Agent for the Issuing Bank upon receipt of a written demand an amount
equal to the amount of any claim.


 


(c)           Each Borrower
acknowledges that the Issuing Bank:


 


(i)            is not obliged to
carry out any investigation or seek any confirmation from any other person
before paying a claim; and


 


(ii)           deals in
documents only and will not be concerned with the legality of a claim or any
underlying transaction or any available set-off, counterclaim or other defence
of any person.


 


(d)           The obligations
of a Borrower under this Clause will not be affected by:


 


21

















 


(i)            the sufficiency,
accuracy or genuineness of any claim or any other document; or


 


(ii)           any incapacity
of, or limitation on the powers of, any person signing a claim or other
document.


 


7.4          Indemnities


 


(a)           Each Borrower
must immediately on demand indemnify the Issuing Bank against any loss or
liability which the Issuing Bank incurs under or in connection with any Letter
of Credit requested by it, except to the extent that the loss or liability is
directly caused by the gross negligence or wilful misconduct of the Issuing
Bank.


 


(b)           Each Lender must
immediately on demand indemnify the Issuing Bank against its share of any loss
or liability which the Issuing Bank incurs under or in connection with any
Letter of Credit and which has not been paid for by an Obligor, except to the
extent that the loss or liability is directly caused by the gross negligence or
wilful misconduct of the Issuing Bank.


 


(c)           A Lender’s share
of the liability or loss referred to in paragraph (b) above will be its Pro
rata Share on the Utilisation Date of the relevant Letter of Credit, adjusted
to reflect any subsequent assignment or transfer under this Agreement.


 


(d)           The relevant Borrower
must immediately on demand reimburse any Lender for any payment it makes to the
Issuing Bank under this Subclause.


 


(e)           The obligations
of each Borrower and each Lender under this Clause are continuing obligations
and will extend to the ultimate balance of all sums payable by that Borrower or
that Lender under or in connection with any Letter of Credit, regardless of any
intermediate payment or discharge in whole or in part.


 


(f)            The obligations
of any Lender under this Clause will not be affected by any act, omission or
thing which, but for this provision, would reduce, release or prejudice any of
its obligations under this Clause (whether or not known to it or any other
person). This includes:


 


(i)            any time or
waiver granted to, or composition with, any person;


 


(ii)           any release of
any person under the terms of any composition or arrangement;


 


(iii)          the taking,
variation, compromise, exchange, renewal or release of, or refusal or neglect
to perfect, take up or enforce, any rights against, or security over assets of,
any person;


 


(iv)          any
non-presentation or non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full value of any
security;


 


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


 


(vi)          any amendment
(however fundamental) of a Finance Document, any Letter of Credit or any other
document or security;


 


(vii)         any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document, any Letter of Credit or any other document or
security; or


 


(viii)        any insolvency or
similar proceedings.


 


22

















 


7.5          Rights
of contribution


 


No Borrower will
be entitled to any right of contribution or indemnity from any Finance Party in
respect of any payment it may make under this Clause.


 


8.             EXTENSION OF ORIGINAL MATURITY DATE


 


(a)           The Obligors’
Agent may request that the Original Maturity Date be extended for the Extension Period by giving notice (an Extension Notice) to the Facility Agent no more than 60 days
and not less than 30 days before the Original Maturity Date. Any such Extension
Notice is irrevocable.


 


(b)           If an Extension
Notice is delivered to the Facility Agent, the Facility Agent must promptly
forward a copy of any Extension Notice to the Lenders.


 


(c)           If on the date of
receipt of an Extension Notice:


 


(i)            the Repeating
Representations are correct in all respects; and


 


(ii)           there is no Default
outstanding,


 


the Original Maturity Date will be extended to the
date falling 365 days after the Original Maturity Date.


 


(d)           Only one
Extension Notice may be given.


 


9.             REPAYMENT


 


9.1          Repayment
of Loans


 


(a)           Each Borrower
must repay the Loans in full on the Final Maturity Date.


 


(b)           Any amounts
repaid under paragraph (a) above may not be re-borrowed.


 


9.2          Repayment
of Letters of Credit


 


(a)           Each Borrower
must repay each Letter of Credit issued on its behalf in full on the earlier of
(i) its Maturity Date and (ii) the Final Maturity Date.


 


(b)           Subject to the
other terms of this Agreement, any amounts repaid under paragraph (a) above
(other than a repayment by way of cash cover pursuant to Clause 7.1(a)(i)
(Letters of Credit)) may be re-utilised.


 


10.          PREPAYMENT AND CANCELLATION


 


10.1        Mandatory
prepayment - illegality


 


(a)           A Lender must
notify the Obligors’ Agent promptly if it becomes aware that it is unlawful in
any jurisdiction for that Lender to perform any of its obligations under a
Finance Document or to fund or maintain its share in any Credit.


 


(b)           After
notification under paragraph (a) above:


 


(i)            each Borrower
must repay or prepay the share of that Lender in each Credit utilised by it on
the date specified in paragraph (c) below; and


 


23

















 


(ii)           the Commitments
of that Lender will be immediately cancelled.


 


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


 


(i)            ten Business Days
following receipt by the Obligors’ Agent of notice from the Lender under
paragraph (a) above; or


 


(ii)           if earlier, the
latest date allowed by the relevant law.


 


10.2        Mandatory
Prepayment - disposal


 


(a)           The Obligors’
Agent must promptly notify the Facility Agent of a disposal by the Group of all
or substantially all of the assets of the Group.


 


(b)           On any such
disposal referred to in paragraph (a) above:


 


(i)            each Borrower
must immediately repay or prepay each Credit utilised by it; and


 


(ii)           the Total
Commitments will be immediately cancelled.


 


10.3        Mandatory
prepayment - change of control


 


(a)           The Obligors’
Agent must promptly notify the Facility Agent if it becomes aware of any person
or group of associated persons (being persons acting in concert (within the
meaning set out in the City Code on Takeovers and Mergers) and/or any connected
persons (as defined in the Income and Corporation Taxes Act of 1988) of those
persons) acquiring the right to exercise more than 50% of the votes exercisable
at a general meeting of Imperial.


 


(b)           Unless otherwise
agreed by the Lenders, on any such acquisition referred to in paragraph (a)
above:


 


(i)            each Borrower
must immediately repay each Credit utilised by it; and


 


(ii)           the Total
Commitments will be immediately cancelled.


 


10.4        Mandatory
prepayment – relevant issuance


 


(a)           In this
subclause:


 


relevant issuance means the issue,
sale or public offering of any debt securities by any member of the Group
excluding:


 


(i)           any issue of
Financial Indebtedness in respect of monies borrowed or raised by any member of
the Group under any local or bilateral facilities with any bank or financial
institution or syndicate of banks or financial institutions or any facilities
in respect of monies borrowed or raised by any member of the Group under
facilities arranged on a syndicated or club deal basis with up to three banks
or financial institutions;


 


(ii)          any drawings
under any syndicated, local or bilateral facilities with any bank or financial
institution or syndicate of banks or financial institutions entered into by any
member of the Group prior to the date of this Agreement;


 


(iii)          any Financial Indebtedness
incurred under the Finance Documents;


 


24

















 


(iv)          any Financial Indebtedness
owed by a member of the Group to another member of the Group; and


 


(v)          any Financial
Indebtedness that arises under or in respect of any derivative transaction
entered into by any member of the Group for protection against or to benefit
from fluctuations in any rate, price, index or credit rating entered into in
the ordinary course of business.


 


(b)           The Borrowers
must apply an amount equal to the Net Proceeds of any relevant issuance towards
prepaying the Credits.


 


(c)           Any
prepayment under this Subclause must be made promptly following the date upon
which the Net Proceeds of the relevant issuance are received by any member of
the Group.


 


10.5        Voluntary
prepayment


 


(a)           The Obligors’
Agent may, by giving not less than five Business Days’ prior notice to the
Facility Agent, prepay any Credit at any time in whole or in part.


 


(b)           A prepayment of
part of a Credit must be in a minimum amount of $10,000,000 and integral
multiples of $5,000,000 or, if less, the outstanding amount of that Credit.


 


10.6        Automatic
cancellation


 


(a)           Save as set out
in paragraph (b) below the Commitments of each Lender will be automatically
cancelled at the close of business on the last day of the Availability Period
in respect of Loans.


 


(b)           The Commitments
of each Lender in respect of $20,000,000 relating to Letters of Credit will be
automatically cancelled at the close of business on the last day of the
Availability Period in respect of Letters of Credit.


 


10.7        Voluntary
cancellation


 


(a)           The Obligors’
Agent may, by giving not less than five Business Days’ prior notice to the
Facility Agent, cancel the Total Commitments in whole or in part.


 


(b)           Partial
cancellation of the Total Commitments must be in a minimum amount of
$10,000,000  and an integral multiple of
$5,000,000 or, if less, the undrawn amount of the relevant Commitment.


 


(c)           Any cancellation
in part of the Commitments under a Facility will be applied against the
Commitments of each Lender under the Facility pro rata.


 


(d)           The Obligors’
Agent must ensure that if, following any voluntary cancellation of the
Commitments under the Facility, the outstanding Loans under the Facility would
exceed the relevant Commitment, an amount of the Loans under the Facility equal
to the excess shall be prepaid.


 


10.8        Involuntary
prepayment and cancellation


 


(a)           If a Borrower is,
or will be, required to pay to a Lender a Tax Payment or an Increased Cost, the
Obligors’ Agent may, while the requirement continues, give notice to the
Facility Agent requesting prepayment and cancellation in respect of that
Lender.


 


(b)           After
notification under paragraph (a) above and subject to clause 29.6 (Replacement
of Lenders):


 


25

















 


(i)            each Borrower
must repay or prepay that Lender’s share in each Credit utilised by it on the
date specified in paragraph (c) below; and


 


(ii)           the Commitments
of that Lender will be immediately cancelled.


 


(c)           The date for
repayment or prepayment of a Lender’s share in a Credit will be the last day of
the current Term for that Credit or, if earlier, the date specified by the
Obligors’ Agent in its notification.


 


10.9        Re-borrowing
of Credits


 


Any voluntary
prepayment of a Letter of Credit (other than a prepayment or repayment by way
of cash cover pursuant to Clause 7.1(a)(i)(Letters of Credit)) may be
re-utilised on the terms of this Agreement. Any mandatory or involuntary
prepayment of a Credit may not be re-borrowed.


 


10.10      Miscellaneous
provisions


 


(a)           Any notice of
prepayment and/or cancellation under this Agreement is irrevocable and must
specify the relevant date(s) and the affected Credits and Commitments. The
Facility Agent must notify the Lenders promptly of receipt of any such notice.


 


(b)           All prepayments
under this Agreement must be made with accrued interest on the amount prepaid. No
premium or penalty is payable in respect of any prepayment except for Break
Costs.


 


(c)           The Majority
Lenders may agree a shorter notice period for a voluntary prepayment or a
voluntary cancellation.


 


(d)           No prepayment or
cancellation is allowed except in accordance with the express terms of this
Agreement.


 


(e)           Except to the
extent expressly set out in this Agreement, no amount of the Total Commitments
cancelled under this Agreement may subsequently be reinstated.


 


10.11      Application
of amounts in cancellation or prepayment


 


(a)           Any cancellation
in whole or in part or voluntary prepayment in whole or in part, will be
applied in accordance with the instructions of the Obligors’ Agent.


 


(b)           Except as set out
in this Clause 10, if any amount is mandatorily prepaid under this
Agreement (other than, for the avoidance of doubt, pursuant to
Clause 10.7(d) (Voluntary cancellation)) the amount prepaid will be
applied pro rata against the participations of
the Lenders in such Credits as the Obligors’ Agent has directed.


 


11.          INTEREST


 


11.1        Calculation
of interest


 


The rate of
interest on each Loan for each Term is the percentage rate per annum equal to
the aggregate of the applicable:


 


(a)           Margin;


 


(b)           LIBOR; and


 


(c)           Mandatory Cost.


 


26

















 


11.2        Payment
of interest


 


Except where it
is provided to the contrary in this Agreement, each Borrower must pay accrued
interest on each Loan made to it on the last day of each Term and also, if the
Term is longer than six months, on the dates falling at six-monthly intervals
after the first day of that Term.


 


11.3        Margin
Step-up


 


(a)           For so long as:


 


(i)            Imperial Finance
is in default of its obligations under this Agreement to provide a Compliance
Certificate; or


 


(ii)           an Event of
Default is outstanding,


 


the Margin will
be one per cent. above the then applicable Margin.


 


(b)           On the date on
which either:


 


(i)            Standard &
Poor’s publishes a long term credit rating for Imperial equal to or lower than
BB+; or


 


(ii)           Moody’s publishes
a long term credit rating for Imperial equal to or lower than Ba1,


 


the applicable
Margin will be increased to a rate which is one per cent. (1.00%) per annum
above the rate which would otherwise have been payable.


 


(c)           The increase in
applicable Margin under paragraph (a) above shall remain in effect until the first
date thereafter on which both:


 


(i)            Standard &
Poor’s has published a long term credit rating for Imperial equal to or higher
than BBB-; and


 


(ii)           Moody’s has
published a long term credit rating for Imperial equal to or higher than Baa3,


 


on which date any
such increase will cease to apply.


 


(d)           The maximum
increase in the applicable Margin under paragraph (a) above will be one per
cent. (1.00%) per annum.


 


(e)           If either
Standard & Poor’s or Moody’s ceases to assign a long term credit rating to
Imperial, Imperial shall use all reasonable efforts to obtain a substitute long
term credit rating from Fitch or another statistical rating agency acceptable
to the Facility Agent.


 


(f)            Following any
substitution under paragraph (e) above, references in this Clause 11.3 to
Moody’s or Standard & Poor’s or the credit ratings of Moody’s or Standard
& Poor’s shall be to such substitute rating agency or the equivalent credit
ratings of that substitute rating agency as the case may be.


 


11.4        Interest
on overdue amounts


 


(a)           If an Obligor
fails to pay any amount payable by it under the Finance Documents, it must
immediately on demand by the Facility Agent pay interest on the overdue amount
from its due date up to the date of actual payment, both before, on and after
judgment.


 


27

















 


(b)           Interest on an
overdue amount is payable at a rate determined by the Facility Agent to be one
per cent. (1.00%) per annum above 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 this purpose, the Facility Agent may
(acting reasonably):


 


(i)            select successive
Terms of any duration of up to three months; and


 


(ii)           determine the
appropriate Rate Fixing Day for that Term.


 


(c)           Notwithstanding
paragraph (b) above, if the overdue amount is a principal amount of a Loan and
becomes due and payable prior to the last day of its current Term, then:


 


(i)            the first Term
for that overdue amount will be the unexpired portion of that Term; and


 


(ii)           the rate of
interest on the overdue amount for that first Term will be one per cent.
(1.00%) per annum above the rate then payable on that Loan.


 


After the expiry
of the first Term for that overdue amount, the rate on the overdue amount will
be calculated in accordance with paragraph (b) above.


 


(d)           The default rate
will be determined on each Business Day or on the Rate Fixing Day, as
appropriate.


 


(e)           Interest (if
unpaid) on an overdue amount will be compounded with that overdue amount at the
end of each of its Terms but will remain immediately due and payable.


 


11.5        Notification
of rates of interest


 


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


 


12.          TERMS


 


12.1        Selection


 


(a)           Each Loan has one
Term only.


 


(b)           A Borrower must
select the Term for a Loan in the relevant Request.


 


(c)           Subject to the
following provisions of this Clause 12, each Term for a Loan will be one,
two, three or six months or, any other period agreed by the Obligors’ Agent and
the Lenders.


 


(d)           Notwithstanding
paragraph (c) above, in order to facilitate the repayment or prepayment in
whole or in part of the Facilities, each Term for a Loan may also be any other
period of less than one months duration to be selected by the Obligors’ Agent.


 


12.2        No
overrunning the Final Maturity Date


 


If a Term would
otherwise overrun the Final Maturity Date it will be shortened so that it ends
on the relevant Final Maturity Date.


 


12.3        Other
adjustments


 


The Facility
Agent and the Obligors’ Agent may enter into such other arrangements as they
may agree for the adjustment of Terms and the consolidation and/or splitting of
Loans.


 


28

















 


12.4        Notification


 


The Facility
Agent must notify the Obligors’ Agent and the Lenders of the duration of each
Term promptly after ascertaining its duration.


 


13.          MARKET DISRUPTION


 


13.1        Failure
of a Reference Bank to supply a rate


 


If LIBOR is to be
calculated by reference to the Reference Banks but a Reference Bank does not
supply a rate by 12.00 noon London time on a Rate Fixing Day, the applicable
LIBOR will, subject as provided below, be calculated on the basis of the rates
of the remaining Reference Banks.


 


13.2        Market
disruption


 


(a)           In this
Clause 13, each of the following events is a market
disruption event:


 


(i)            LIBOR is to be
calculated by reference to the Reference Banks but no, or only one, Reference
Bank supplies a rate by 12.00 noon London time on the Rate Fixing Day; or


 


(ii)           the Facility
Agent receives by close of business on the Rate Fixing Day notification from
Lenders whose shares in the relevant Loan exceed 30% of that Loan that the cost
to them of obtaining matching deposits in the relevant interbank market is in
excess of LIBOR for the relevant Term.


 


(b)           The Facility
Agent must promptly notify the Obligors’ Agent and the Lenders of the
occurrence of a market disruption event.


 


(c)           After
notification under paragraph (b) above, the rate of interest on each Lender’s
share in the affected Loan for the relevant Term will be the aggregate of the
applicable:


 


(i)            Margin;


 


(ii)           rate notified to
the Facility Agent by that Lender as soon as practicable, and in any event
before interest is due to be paid in respect of that Term, to be that which
expresses as a percentage rate per annum the cost to that Lender of funding its
share in that Loan from whatever source it may reasonably select; and


 


(iii)          Mandatory Cost.


 


13.3        Alternative
basis of interest or funding


 


(a)           If a market
disruption event occurs and the Facility Agent or the Obligors’ Agent so
requires, the Obligors’ Agent and the Facility Agent must enter into
negotiations for a period of not more than 30 days with a view to agreeing an
alternative basis for determining the rate of interest and/or funding for the
affected Loan and any future Loan.


 


(b)           Any alternative
basis agreed will be, with the prior consent of all the Lenders, binding on all
the Parties.


 


29
















 


14.          TAXES


 


14.1        Tax
gross-up


 


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


 


(b)           If:


 


(i)            a Lender is not,
or ceases to be, a Qualifying Lender; or


 


(ii)           an Obligor or a
Lender is aware that an Obligor must make a Tax Deduction (or that there is a
change in the rate or the basis of a Tax Deduction),


 


it must promptly
notify the Facility Agent. The Facility Agent must then promptly notify the
affected Parties.


 


(c)           Except as
provided below, if a Tax Deduction is required by law to be made by an Obligor
or the Facility Agent, the amount of the payment due from the Obligor will be
increased to an amount which (after making the Tax Deduction) leaves an amount
equal to the payment which would have been due if no Tax Deduction had been
required.


 


(d)           Except as
provided below, an Obligor is not required to make an increased payment under
paragraph (c) above for a Tax Deduction in respect of Tax imposed or levied
by the U.K. or any taxing authority of or in the U.K. to a Lender that is not,
or has ceased to be, a Qualifying Lender in respect of that payment in excess
of the amount that the Obligor would have had to pay had the Lender been, or
not ceased to be, a Qualifying Lender.


 


(e)           Paragraph (d)
above will not apply if the Lender has ceased to be a Qualifying Lender by
reason of any change after the date it became a Lender under this Agreement in
(or in the interpretation, administration, or application of) any law or double
taxation agreement or any published practice or concession of any relevant
taxing authority.


 


(f)            An Obligor is not
required to make an increased payment to a Lender under paragraph (c) above for
a Tax Deduction in respect of Tax imposed or levied by the U.K. or any taxing
authority of or in the U.K. if that Lender is a Treaty Lender and the Obligor
making the payment is able to demonstrate that the Tax Deduction would not have
been required if the Lender had complied with its obligations under paragraph
(i) below.


 


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


 


(h)           Within 30 days of
making either a Tax Deduction or a payment required in connection with a Tax
Deduction, the Obligor making that Tax Deduction or payment must deliver to the
Facility Agent for the relevant Finance Party evidence that the Tax Deduction
has been made or (as applicable) the appropriate payment has been paid to the
relevant taxing authority.


 


(i)            A Treaty Lender
and each Obligor which makes a payment to which that Treaty Lender is entitled
shall co-operate and use their reasonable endeavours in completing any
procedural formalities necessary for that Obligor to obtain authorisation to
make that payment without a Tax Deduction and to claim re-imbursement of any
Tax paid prior to obtaining that authorisation.


 


30

















 


(j)            An Obligor is not
required to make an increased payment to a U.K. Non-Bank Lender under paragraph
(c) above if HM Revenue & Customs has given (and not revoked) a direction
in respect of that U.K. Non-Bank Lender under section 349C of the Income and
Corporation Taxes Act 1988 (as that provision has effect on the date on which
the relevant U.K. Non-Bank Lender became a party to this Agreement) and the
relevant Obligor has notified the relevant U.K. Non-Bank Lender of the precise
terms of that notice.


 


(k)           A U.K. Non-Bank
Lender must as soon as reasonably practicable notify the Obligors’ Agent and
the Facility Agent of any change to its status that may affect the Tax
Confirmation made by that U.K. Non-Bank Lender.


 


(l)            Each Original
Lender hereby confirms that it is not a U.K. Non-Bank Lender.


 


(m)          A U.K. Non-Bank
Lender which is not an Original Lender shall give a Tax Confirmation in the
Transfer Certificate which it executes on becoming a Party.


 


14.2        Tax
indemnity


 


(a)           Except as
provided below, the Obligors’ Agent must indemnify a Finance Party against any
loss or liability which that Finance Party (in its absolute discretion)
determines will be or has been suffered (directly or indirectly) by that
Finance Party for or on account of Tax in relation to a payment received or
receivable (or any payment deemed to be received or receivable) under a Finance
Document.


 


(b)           Paragraph (a)
above does not apply to any Tax assessed on a Finance Party under the laws of
the jurisdiction in which:


 


(i)            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 has a
permanent establishment; or


 


(ii)           that Finance
Party’s Facility Office is located in respect of amounts received or receivable
in that jurisdiction,


 


if that Tax is
imposed on or calculated by reference to the net income, gains or profits
received or receivable by that Finance Party, however, any payment deemed to be
received or receivable, including any amount treated as income but not actually
received by the Finance Party, such as a Tax Deduction, will not be treated as
net income received or receivable for this purpose.


 


(c)           Paragraph (a)
above does not apply to the extent that a loss or liability:


 


(i)            is compensated
for by an increased payment under Clause 14.1(c) (Tax gross-up); or


 


(ii)           would have been
compensated for by an increased payment under Clause 14.1(c) (Tax
gross-up) but was not so compensated because an exclusion set out in Clauses 14.1(d),
(f) or (j) (Tax gross-up) applied.


 


(d)           A Finance Party
making, or intending to make, a claim under Clause 14.1(a) (Tax gross-up)
above must promptly notify the Obligors’ Agent in reasonable detail of the
event which will give, or has given, rise to the claim.


 


14.3        Tax
Credit


 


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


 


31

















 


(a)           a Tax Credit is attributable
to that Tax Payment; and


 


(b)           it has used and retained
that Tax Credit,


 


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


 


14.4        Stamp
taxes


 


The Obligors’
Agent must pay and indemnify each Finance Party against any stamp duty,
registration or other similar Tax payable:


 


(a)           in the U.K. or any
jurisdiction in which any Obligor is incorporated or resident for tax purposes
in connection with the entry into or performance of any Finance Document,
except for any such Tax payable in connection with the entry into a Transfer
Certificate; or


 


(b)           in any jurisdiction in
connection with the enforcement of any Finance Document.


 


14.5        Value
added taxes


 


(a)           Any amount
(including costs and expenses) payable under a Finance Document by an Obligor
is exclusive of any value added tax (or any other Tax of a similar nature)
which might be chargeable in connection with that amount. If any such Tax is chargeable,
the Obligor must pay to the Finance Party (in addition to and at the same time
as paying that amount) an amount equal to the amount of that Tax.


 


(b)           The
obligation of any Obligor under paragraph (a) above will be reduced to the
extent that the Finance Party is entitled to repayment or a credit in respect
of the relevant Tax.


 


14.6        Provisional
Treaty Relief Scheme


 


(a)           Each Treaty
Lender on and after the date it becomes Party:


 


(i)            irrevocably
appoints the Facility Agent to act as syndicate manager under, and authorises
the Facility Agent to operate, and take any action necessary or desirable
under, the PTR Scheme in connection with the Facility;


 


(ii)           shall co-operate
with the Facility Agent in completing any procedural formalities necessary under
the PTR Scheme, and shall promptly supply to the Facility Agent such
information as the Facility Agent may request in connection with the operation
of the PTR Scheme;


 


(iii)          without limiting
the liability of any Obligor under this Agreement, shall, within five Business
Days of demand, indemnify the Facility Agent for any liability or loss incurred
by the Facility Agent as a result of the Facility Agent acting as syndicate
manager under the PTR Scheme in connection with the Treaty Lender’s
participation in any Credit (except to the extent that the liability or loss
arises directly from the Facility Agent’s gross negligence or wilful
misconduct); and


 


(iv)          shall, within
five Business Days of demand, indemnify each Obligor for any Tax which such
Obligor becomes liable to pay in respect of any payments made to such Treaty
Lender arising as a result of any incorrect information supplied by such Treaty
Lender under paragraph (ii) above which results in a provisional authority
issued by HM Revenue & Customs under the PTR Scheme being withdrawn.


 


32

















 


(b)           Each Obligor
acknowledges that it is fully aware of its contingent obligations under the PTR
Scheme and shall:


 


(i)            promptly supply
to the Facility Agent such information as the Facility Agent may request in
connection with the operation of the PTR Scheme; and


 


(ii)           act in accordance
with any provisional notice issued by HM Revenue & Customs under the PTR
Scheme.


 


(c)           The Facility
Agent agrees to provide, as soon as reasonably practicable, a copy of any
provisional authority issued to it under the PTR Scheme in connection with any
Credit to those Obligors specified in such provisional authority.


 


(d)           All Parties
acknowledge that the Facility Agent:


 


(i)            is entitled to rely
completely upon information provided to it in connection with paragraphs (a)
and (b) above;


 


(ii)           is not obliged to
undertake any enquiry into the accuracy of such information, nor into the
status of the Treaty Lender or, as the case may be, Obligor providing such
information; and


 


(iii)          shall have no
liability to any person for the accuracy of any information it submits in
connection with paragraph (a)(i) above.


 


15.          INCREASED COSTS


 


15.1        Increased
Costs


 


Except as
provided below in this Clause 15, the Obligors’ Agent must pay to a
Finance Party the amount of any Increased Cost incurred by that Finance Party
or any of its Affiliates as a result of:


 


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


 


(b)           compliance with any law or
regulation,


 


made after the
date of this Agreement.


 


15.2        Exceptions


 


The Obligors’
Agent need not make any payment for an Increased Cost to the extent that the
Increased Cost is:


 


(a)           compensated for under
another Clause or would have been but for an exception to that Clause;


 


(b)           a tax on the overall net
income of a Finance Party or any of its Affiliates;


 


(c)           attributable to a Finance
Party or its Affiliate wilfully failing to comply with any law or regulation;


 


(d)           attributable to the period,
if any, starting 90 days after any officer of the relevant Finance Party
involved with the Facility became aware of that Increased Cost but before the
Obligors’ Agent is notified by the Finance Party of the Increased Cost under
this Clause 15;


 


33

















 


(e)           attributable to the
negligence or wilful misconduct of a Finance Party or its Affiliate; or


 


(f)            attributable only to the
implementation or application of or compliance with the Basel II Framework (or
any other law or regulation which implements that framework) including any
change to the risk-weighting of any Loan (or the risk-weighting of any other
exposure to an Obligor under this Agreement which occurs as a result of any
change in the financial position or prospects of a Borrower) which results in
any change to any internal or external credit rating of an Obligor.


 


15.3        Claims


 


(a)           A Finance Party
intending to make a claim for an Increased Cost must notify the Obligors’ Agent
promptly of the circumstances giving rise to, and the amount of, the claim.


 


(b)           Any notification
must include in reasonable detail the reasons for, and a calculation of, the
Increased Cost.


 


16.          MITIGATION


 


16.1        Mitigation


 


(a)           Each Finance
Party must, in consultation with the Obligors’ Agent, take all reasonable steps
to mitigate any circumstances which arise and which result or would result in:


 


(i)            any Tax Payment
or Increased Cost being payable to that Finance Party;


 


(ii)           that Finance
Party being able to exercise any right of prepayment and/or cancellation under
this Agreement by reason of any illegality; or


 


(iii)          that Finance
Party incurring any Mandatory Cost,


 


including
transferring its rights and obligations under the Finance Documents to an
Affiliate or changing its Facility Office.


 


(b)           The Obligors’
Agent must indemnify each Finance Party for all costs and expenses reasonably
incurred by that Finance Party as a result of any step taken by it under
paragraph (a) above.


 


(c)           A Finance Party
is not obliged to take any step under paragraph (a) above if, in the opinion of
that Finance Party (acting reasonably), to do so might be prejudicial to it.


 


16.2        Conduct
of business by a Finance Party


 


No term 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
in respect of Tax 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
computation in respect of Tax.


 


34

















 


17.          PAYMENTS


 


17.1        Place
of Payments


 


Unless a Finance
Document specifies that payments under it are to be made in another manner, all
payments by a Party (other than the Facility Agent) under the Finance Documents
must be made to the Facility Agent to its account at such office or bank in New
York as it may notify to that Party by written notice for this purpose by not
less than five Business Days’ prior notice.


 


17.2        Funds


 


Payments under
the Finance Documents to the Facility Agent must be made for value on the due
date at such times and in such funds as the Facility Agent may specify to the
Party concerned as being customary at the time for the settlement of
transactions in the relevant currency in the place for payment.


 


17.3        Distribution


 


(a)           Each payment
received by the Facility Agent under the Finance Documents for another Party
must, except as provided below, be made available by the Facility Agent to that
Party by payment (as soon as practicable after receipt) to its account with
such office or bank in New York as it may notify to the Facility Agent for this
purpose by not less than five Business Days’ prior notice.


 


(b)           The Facility
Agent may apply any amount received by it for an Obligor in or towards payment
(as soon as practicable after receipt) of any amount due from that Obligor
under the Finance Documents or in or towards the purchase of any amount of any
currency to be so applied.


 


(c)           Where a sum is
paid to the Facility Agent under this Agreement for another Party, the Facility
Agent is not obliged to pay that sum to that Party until it has established
that it has actually received it. However, the Facility Agent may assume that
the sum has been paid to it, and, in reliance on that assumption, make
available to that Party a corresponding amount. If it transpires that the sum has
not been received by the Facility Agent, that Party must immediately on demand
by the Facility Agent refund any corresponding amount made available to it
together with interest on that amount from the date of payment to the date of
receipt by the Facility Agent at a rate calculated by the Facility Agent to
reflect its cost of funds.


 


17.4        Currency


 


(a)           Unless a Finance
Document specifies that payments under it are to be made in a different manner,
the currency of each amount payable under the Finance Documents is determined
under this Clause.


 


(b)           Interest is
payable in the currency in which the relevant amount in respect of which it is
payable is denominated.


 


(c)           A repayment or
prepayment of any principal amount is payable in the currency in which that principal
amount is denominated on its due date.


 


(d)           Amounts payable
in respect of Taxes, fees, costs and expenses are payable in the currency in
which they are incurred.


 


(e)           Each other amount
payable under the Finance Documents is payable in U.S. Dollars.


 


35

















 


17.5        No
set-off or counterclaim


 


All payments made
by an Obligor under the Finance Documents must be made without set-off or
counterclaim.


 


17.6        Business
Days


 


(a)           If a payment
under the Finance Documents is due on a day which is not a Business Day, the
due date for that payment will instead be the next Business Day in the same
calendar month (if there is one) or the preceding Business Day (if there is
not) or whatever day the Facility Agent determines is market practice.


 


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


 


17.7        Partial
payments


 


(a)           If any
Administrative Party receives a payment insufficient to discharge all the
amounts then due and payable by the Obligors under the Finance Documents, the
Administrative Party must apply that payment towards the obligations of the
Obligors 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 Parties under the Finance
Documents;


 


(ii)           secondly, in
or towards payment pro rata of any
accrued interest or fee (including fronting fees and guarantee fees) due but
unpaid under this Agreement;


 


(iii)          thirdly, in
or towards payment pro rata of any
other principal amount 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 Facility
Agent must, if so directed by all the Lenders, vary the order set out in
paragraphs (a)(ii) to (iv) above.


 


(c)           This
Clause 17.7 will override any appropriation made by an Obligor.


 


17.8        Timing
of payments


 


If a Finance
Document does not provide for when a particular payment is due, that payment
will be due within three Business Days of demand by the relevant Finance Party.


 


17.9        Good
discharge


 


Without prejudice
to any other term of this Agreement, any payment by an Obligor to the Facility
Agent in accordance with this Clause 17 for a Lender constitutes a
discharge of its obligations to that Lender in respect of that payment. Accordingly,
no Obligor is liable to the Lender if the Facility Agent fails for any reason to
make the corresponding payment to that Lender.


 


36

















 


18.          GUARANTEE AND INDEMNITY


 


18.1        Guarantee
and indemnity


 


Each Guarantor
jointly and severally irrevocably and unconditionally:


 


(a)           guarantees to each Finance
Party punctual performance by each Borrower of all its obligations under the
Finance Documents;


 


(b)           undertakes with each Finance
Party that, whenever a Borrower does not pay any amount when due under any
Finance Document, that Guarantor shall immediately on demand by the Facility
Agent pay that amount as if it were the principal obligor; and


 


(c)           indemnifies each Finance
Party immediately on demand against any loss or liability suffered by that
Finance Party if any obligation guaranteed by it is or becomes unenforceable,
invalid or illegal; the amount of the loss or liability under this indemnity
will be equal to the amount the Finance Party would otherwise have been
entitled to recover.


 


18.2        Continuing
guarantee


 


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


 


18.3        Reinstatement


 


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


 


(b)           Each Finance
Party may concede or compromise any claim that any payment, security or other
disposition is liable to avoidance or restoration.


 


18.4        Waiver
of defences


 


The obligations
of each Guarantor under this Clause 18 will not be affected by any act,
omission or thing which, but for this provision, would reduce, release or
prejudice any of its obligations under this Clause 18 (whether or not
known to it or any Finance Party). This includes:


 


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


 


(b)           any release of any person
under the terms of any composition or arrangement;


 


(c)           the taking, variation,
compromise, exchange, renewal or release of, or refusal or neglect to perfect,
take up or enforce, any rights against, or security over assets of, any person;


 


(d)           any non-presentation or
non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;


 


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


 


37

















 


(f)            any amendment (however
fundamental) of a Finance Document or any other document or security; or


 


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


 


18.5        Immediate
recourse


 


Each Guarantor
waives any right it may have of first requiring any Finance Party (or any
trustee or agent on its behalf) to proceed against or enforce any other right
or security or claim payment from any person before claiming from it under this
Clause 18.


 


18.6        Appropriations


 


Until all amounts
which may be or become payable by the Obligors under the Finance Documents have
been irrevocably paid in full, each Finance Party (or any trustee or agent on
its behalf) may:


 


(a)           without affecting the
liability of any Guarantor under this Clause 18:


 


(i)            refrain from applying or
enforcing any other moneys, security or rights held or received by that Finance
Party (or any trustee or agent on its behalf) in respect of those amounts; or


 


(ii)           apply and enforce them in
such manner and order as it sees fit (whether against those amounts or
otherwise); and


 


(b)           hold in an interest-bearing
suspense account any moneys received from any Guarantor or on account of that
Guarantor’s liability under this Clause 18.


 


18.7        Non-competition


 


Unless:


 


(a)           all amounts which may be or
become payable by the Obligors under the Finance Documents have been
irrevocably paid in full; or


 


(b)           the Facility Agent otherwise
directs,


 


no Guarantor
will, after a claim has been made or by virtue of any payment or performance by
it under this Clause 18:


 


(i)            be subrogated to
any rights, security or moneys held, received or receivable by any Finance
Party (or any trustee or agent on its behalf);


 


(ii)           be entitled to
any right of contribution or indemnity in respect of any payment made or moneys
received on account of its liability under this Clause 18;


 


(iii)          claim, rank,
prove or vote as a creditor of any Borrower or its estate in competition with
any Finance Party (or any trustee or agent on its behalf); or


 


(iv)          receive, claim or
have the benefit of any payment, distribution or security from or on account of
any Borrower, or exercise any right of set-off as against any Borrower.


 


38

















 


Each Guarantor
must hold in trust for and immediately pay or transfer to the Facility Agent
for the Finance Parties any payment or distribution or benefit of security
received by it contrary to this Clause 18 or in accordance with any
directions given by the Facility Agent under this Clause 18.


 


18.8        Additional
security


 


This guarantee is
in addition to and is not in any way prejudiced by any other security now or
subsequently held by any Finance Party.


 


18.9        Limitation


 


This guarantee
does not apply to any liability to the extent it would result in this guarantee
constituting unlawful financial assistance within the meaning of Section 151 of
the Companies Act 1985.


 


19.          REPRESENTATIONS


 


19.1        Representations


 


Imperial makes
the representations and warranties set out in this Clause 19 to each
Finance Party on the date of this Agreement.


 


19.2        Status


 


Each Obligor is a
limited liability company, duly incorporated and validly existing under the
laws of England and Wales.


 


19.3        Powers
and authority


 


Each Obligor has
the power to enter into and perform, and has taken all necessary action to
authorise the entry into, performance and delivery of, the Finance Documents to
which it is or will be a party and the transactions contemplated by those
Finance Documents.


 


19.4        Legal
validity


 


Subject to the
Reservations, each Finance Document to which an Obligor is or will be a party
constitutes, or when executed in accordance with its terms will constitute its
legal, valid, binding and enforceable obligation in accordance with its terms.


 


19.5        Non-conflict


 


The entry into
and performance by each Obligor of, and the transactions contemplated by, the
Finance Documents does not and will not conflict with:


 


(a)           any law or regulation or
judicial order applicable to it; or


 


(b)           its memorandum or articles
of association; or


 


(c)           any document which is
binding upon any member of the Group or any of their assets.


 


19.6        No
default


 


(a)           No Default has
occurred and remains unremedied or unwaived.


 


39

















 


(b)           No other event or
circumstance is outstanding which constitutes a default under any other
agreement or instrument which is binding on a member of the Group or to which
their assets are subject which has or could reasonably be expected to have a
Material Adverse Effect.


 


19.7        Authorisations


 


All
authorisations required by the Obligors in connection with the entry into,
performance, validity, enforceability and admissibility into evidence of, and
the transactions contemplated by, the Finance Documents have been obtained or
effected and are in full force and effect.


 


19.8        Information


 


To the best of
the knowledge, information and belief of Imperial, all factual written
information provided by or on behalf of Imperial to the Mandated Lead Arrangers
in connection with the Facilities was, at the time the same was provided, true
and accurate in all material respects.


 


19.9        Accounts


 


The Original
Financial Statements:


 


(a)           were prepared in accordance
with approved accounting standards in the U.K.; and


 


(b)           in conjunction with the
notes, gave a true and fair view of the financial condition of the Group as at
the date to which they were drawn up and the results of the Group’s operations
during the relevant financial period,


 


and as at the
date of this Agreement, there has been no material adverse change in the
consolidated financial condition of the Group since the date to which those
accounts were drawn up.


 


19.10      Litigation


 


Save as disclosed
in the Litigation Report, no litigation, arbitration or administrative
proceedings against any member of the Group are either current or, to the best
of its knowledge and belief, threatened or pending which, if adversely
determined, could reasonably be expected to have, a Material Adverse Effect.


 


19.11      Security
Interest


 


The execution of
this Agreement, and the exercise by the Obligors of their rights or performance
of their obligations under this Agreement, will not result in the existence of,
or oblige any member of the Group to create, any Security Interest over all or
any part of its present or future assets which would not be permitted to be
created pursuant to Clause 20.10 (Negative pledge).


 


19.12      Pari
passu ranking


 


Under the laws of
England and Wales in force at the date of this Agreement, the claims of the
Finance Parties against the Obligors under the Finance Documents will rank pari passu with the claims of all other unsecured and
unsubordinated creditors of that Obligor, except for obligations which are
mandatorily preferred by law applying to companies generally.


 


19.13      Environmental
Compliance


 


Each member of
the Group has complied in all respects with all Environmental Law save to the
extent that non-compliance could reasonably be expected not to have a Material
Adverse Effect.


 


40

















 


19.14      Times
for making Representations


 


(a)           The
representations set out in this Clause are made by Imperial on the date of this
Agreement.


 


(b)           With the
exception of those matters set out in Clauses 19.6 (No default) to 19.13
(Environmental Compliance) inclusive, each representation set out in this
Clause is deemed to be repeated by Imperial on the date of each Request and the
first day of each Term, in each case with reference to the facts and
circumstances then existing.


 


20.          UNDERTAKINGS


 


20.1        Duration


 


The undertakings
in this Clause remain in force from the date of this Agreement for so long as
any amount is or may be outstanding under this Agreement.


 


20.2        Financial
Information


 


(a)           Imperial must:


 


(i)            as soon as the
same become available, but in any event within 180 days after the end of each
of its financial years, deliver to the Facility Agent the audited consolidated
accounts of the Group for that financial year;


 


(ii)           as soon as the
same become available, but in any event within 90 days after the end of the
first half of each of its financial years, deliver to the Facility Agent the
half yearly financial statements of the Group for that period required to be
sent to the holders of Imperial’s listed shares pursuant to the Stock Exchange
Publication “Admission of Securities to Listing”, or any equivalent statement
or report required to be so delivered by any replacement or successor
publication dealing with the information obligations of listed companies;


 


(iii)          as soon as the
same become available but in any event within either 30 days of the same being
filed at Companies House or within 180 days of the end of each of its financial
years whichever is the earlier, deliver to the Facility Agent the audited
accounts of each Borrower for each financial year; and


 


(iv)          Imperial shall
ensure that each set of accounts referred to in paragraphs (i), (ii) and (iii)
above (except as may be stated in the notes):


 


(A)          are prepared in
accordance with approved accounting standards in the U.K. or such other
accounting standards as agreed in accordance with paragraph (b)(i) below;


 


(B)           in the case of
the accounts referred to in paragraphs (i) and (iii) above, give a true and
fair view of the financial condition of the Group or, as the case may be, each
Borrower as at the date to which they were drawn up and the results of the
Group’s or, as the case may be, each Borrower’s operations during the relevant
financial year; and


 


(C)           in the case of
the accounts referred to in paragraph (ii) above, fairly represents the
financial condition of the Group during the period to which it relates.


 


(b)           Imperial must:


 


41

















 


(i)            notify the
Facility Agent of any change to the basis on which its audited consolidated
financial statements are prepared and any change to its financial year end;


 


(ii)           if requested by
the Facility Agent, supply to the Facility Agent:


 


(A)          a full
description of any change notified under paragraph (i) above; and


 


(B)           sufficient
information to enable the Finance Parties to make a proper comparison between
the financial position shown by the set of financial statements prepared on the
changed basis and its most recent audited consolidated financial statements
delivered to the Facility Agent under this Agreement;


 


(iii)          if requested by
the Facility Agent (and, if requested by Imperial, the Facility Agent must)
enter into discussions for a period of not more than 30 days with a view to
agreeing any amendments required to be made to this Agreement to place Imperial
and the Lenders in the same position as they would have been in if the change
had not happened. Any agreement between Imperial and the Facility Agent will
be, with the prior consent of the Majority Lenders, binding on all the Parties;
and


 


(iv)          if no agreement
is reached under paragraph (iii) above on the required amendments to this
Agreement, ensure that its auditors or another firm of accountants certify
those amendments and the certificate of the auditors or another firm of
accountants will be, in the absence of manifest error, binding on all the
Parties. In preparing the report the auditors or another firm of accountants
will act as independent experts and not as auditors.


 


20.3        Information
- Miscellaneous


 


Imperial shall:


 


(a)           supply to the Facility Agent
all documents despatched by it to its shareholders generally (or any class of
them) or its creditors generally (or any class of them) within two Business
Days of the same being despatched;


 


(b)           supply to the Facility Agent
promptly on demand by the Facility Agent, such further information in the
possession or control of any member of the Group regarding its financial
condition and operations, as it may reasonably request; and


 


(c)           promptly upon becoming aware
of them, supply to the Facility Agent the details of any litigation,
arbitration or administrative proceedings which are commenced against any
member of the Group and which are or are reasonably likely to be determined
adversely to it and which, if so adversely determined, would have a Material
Adverse Effect.


 


20.4        Notification
of Default


 


Imperial shall
notify the Facility Agent of any Default (and the steps, if any, being taken to
remedy it) promptly upon it becoming aware of such occurrence.


 


20.5        Know
your customer requirements


 


(a)           Subject to
paragraph (b) below, each Obligor must as soon as reasonably practicable on the
request of any Finance Party supply to that Finance Party any documentation or
other evidence which is reasonably requested by that Finance Party (whether for
itself, on behalf of any Finance Party or any prospective new Lender) to enable
a Finance Party or prospective new Lender to carry out and be satisfied with
the results of all applicable know your customer requirements.


 


42

















 


(b)           An Obligor is
only required to supply any information under paragraph (a) above, if the
necessary information is not already available to the relevant Finance Party
and the requirement arises as a result of:


 


(i)            the introduction
of or any change in (or in the interpretation, administration or application
of) any law or regulation made after the date of this Agreement;


 


(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/or obligations
under this Agreement to a person that is not a Lender before that assignment or
transfer.


 


(c)           Each Lender must
promptly on the request of the Facility Agent supply to the Facility Agent any
documentation or other evidence which is reasonably required by the Facility
Agent to carry out and be satisfied with the results of all applicable know
your customer requirements.


 


20.6        Compliance
Certificates


 


Imperial Finance
shall promptly supply to the Facility Agent (in sufficient copies for all the
Lenders, if the Facility Agent so requests):


 


(a)           with each set of financial
statements of the Group delivered to it under Clauses 20.2(a)(i) and (ii)
(Financial Information) above for a Measurement Period of the Group ending on
or after 31 March 2007, a Compliance Certificate signed by one of its directors
or senior officers and a list of the Principal Subsidiaries as at the date of
those accounts; and


 


(b)           if the Facility Agent so
requests, a certificate signed by one of its directors or senior officers on
its behalf certifying that no Default is outstanding or, if a Default is
outstanding, specifying the Default and the steps (if any) being taken to
remedy it.


 


20.7        Authorisations


 


Each Obligor
shall promptly:


 


(a)           obtain, maintain and comply
with the terms of; and


 


(b)           supply certified copies to
the Facility Agent of,


 


any authorisation
required under any law or regulation to enable it to perform its obligations
under the Finance Documents, and to ensure the validity, enforceability and the
admissibility in evidence in England and Wales of each Finance Document.


 


20.8        Compliance
with laws


 


Imperial shall,
and shall procure that each member of the Group shall, comply in all respects
with all laws (including, without limitation, Environmental Law) to which it is
subject, if failure so to comply has or could reasonably be expected to have a
Material Adverse Effect.


 


20.9        Pari
passu  ranking


 


Each Obligor
shall procure that its payment obligations under the Finance Documents do and
will rank at least pari passu with
all its other present and future unsecured and unsubordinated liabilities,
except for liabilities which are mandatorily preferred by law applying to
companies generally.


 


43

















 


20.10      Negative
pledge


 


(a)           Imperial shall
not, and shall procure that no other member of the Group will, create or permit
to subsist any Security Interest on any of its present or future assets.


 


(b)           Paragraph (a)
above does not apply to the following Security Interests:


 


(i)            any lien arising
solely by operation of law;


 


(ii)           any Security
Interest existing on or over the assets of any company at the time it becomes a
member of the Group after the date of this Agreement, but only if:


 


(A)          the Security
Interest (and the indebtedness secured thereby) was not created in
contemplation of the company becoming a member of the Group; and


 


(B)           the maximum
principal amount of the indebtedness secured by the Security Interest is not subsequently
increased;


 


(iii)          any Security
Interest existing on or over an asset acquired by a member of the Group after
the date of this Agreement, but only if:


 


(A)          the Security
Interest (and the indebtedness secured thereby) was not created in contemplation
of the acquisition; and


 


(B)           the maximum
principal amount of the indebtedness secured by the Security Interest is not
subsequently increased;


 


(iv)          any Security
Interest over any fixed asset acquired by a member of the Group after the date
of this Agreement as security for, or for indebtedness incurred to finance or
refinance (within six months of the acquisition), all or part of the
consideration for the acquisition of that fixed asset;


 


(v)           any Security
Interest arising over accounts with banks and financial institutions as a
result of netting and set-off arrangements existing and/or arising from time to
time with those banks and financial institutions which have extended or extend
cash management facilities to any member of the Group;


 


(vi)          any Security
Interest over goods purchased by a member of the Group in the ordinary course
of its trade arising in favour of the relevant supplier by virtue of the
supplier’s retention of title clause and which secures only the purchase price
of the goods;


 


(vii)         any security
granted by a member of the Group (other than an Obligor) in favour of another
member of the Group;


 


(viii)        any Security
Interest over cash or credit balances on any account arising from the customary
general business conditions of any credit institution with whom any member of
the Group maintains a banking relationship in the ordinary course of its
business; and


 


(ix)           any Security
Interest (other than any Security Interests permitted by paragraphs (i) to
(viii) above) securing indebtedness not exceeding in aggregate £100,000,000 (or
equivalent).


 


(c)           If any Obligor
creates or permits to subsist any Security Interest on any of its assets
contrary to paragraph (a) above but subject to paragraph (b) above all the
obligations of the Obligors under this


 


44

















 


Agreement shall automatically and immediately be
secured upon the same assets, ranking at least pari passu
with the other obligations secured on those assets.


 


20.11      Restrictions
on Guarantees


 


Imperial shall
procure that no other member of the Group (other than Imperial) will guarantee
(which for the purposes of this Clause 20.11 includes an indemnity or
other form of assurance against financial loss) any indebtedness of the
Borrowers unless the obligations of the Borrowers under this Agreement are
similarly guaranteed, save when such guarantee is given by a member of the
Group in connection with netting and set-off arrangements under cash management
facilities existing and/or arising from time to time in the ordinary course of
its banking arrangements and extended to members of the Group by a bank or
financial institution.


 


20.12      Disposals


 


Imperial shall not, and shall procure that no other
member of the Group shall, either in a single transaction or in a series of
transactions, whether related or not, and whether voluntarily or involuntarily,
sell, transfer, grant or lease, or otherwise dispose of all or substantially
all of the assets of the Group.


 


20.13      Merger


 


No Obligor shall enter into any amalgamation,
demerger, merger or corporate reconstruction without the prior approval of the
Majority Lenders.


 


20.14      Change
of Business


 


Imperial shall
procure that no substantial change is made to the general nature of the
business of the Group from that carried on at the date of this Agreement.


 


20.15      Financial
Indebtedness


 


(a)           Imperial shall
procure that the aggregate principal amount of outstanding Financial
Indebtedness of the Group does not exceed £150,000,000 (or equivalent).


 


(b)           Paragraph (a)
above does not apply to any Financial Indebtedness:


 


(i)            of the Obligors;


 


(ii)           under the Bond
Documents;


 


(iii)          incurred by the
Issuer under any issue of securities in the debt capital markets the Net
Proceeds of which are lent directly or indirectly by the Issuer to an Obligor;


 


(iv)          incurred by a
member of the Group arising in connection with a guarantee, bonding or other
similar document or instrument issued to any relevant agency or authority for
the purpose of providing a guarantee or assurance for the payment of Tax which
is or may become due from any member of the Group in the ordinary course of its
business; and


 


(v)           constituting
debit balances on accounts maintained with banks or financial institutions up
to the amount of any credit balance of any member of the Group on any account
where there is a legal arrangement permitting those balances to be offset.


 


45

















 


20.16      The
Issuer


 


Imperial shall
procure that the Issuer will not:


 


(a)           carry on any trade or
business;


 


(b)           own any material assets; or


 


(c)           incur any material
liabilities,


 


other than:


 


(i)            the incurrence of
any liabilities under or in connection with the Bond Documents or in respect of
any other indebtedness permitted under Clause 20.15 (Financial Indebtedness);


 


(ii)           any receivable
owed to the Issuer by Imperial Finance resulting from a loan referred to in
Clause 20.15(b)(iii) (Financial Indebtedness) and any liability for Tax
incurred by the Issuer in respect of interest on any such loan; and


 


(iii)          any amount held
in cash by the Issuer pending application in servicing the indebtedness
referred to in paragraph (i) above.


 


20.17      Acquisition
of Target Shares


 


The Obligors’
Agent shall:


 


(a)           promptly supply to the
Facility Agent:


 


(i)            copies of all documents,
certificates, notices or announcements issued by Imperial to Imperial’s
shareholders in relation to the Acquisition;


 


(ii)           any information relating to
any breach of, default under or waiver or consent in relation to the
Acquisition Agreement where such breach, default, waiver or consent would have
a material adverse effect on the business, assets or condition of the Group
(which for these purposes includes the Target and its Subsidiaries) taken as a
whole; and


 


(iii)          any other information
relating to the progress of the Acquisition as the Facility Agent may
reasonably request,


 


in each case
except to the extent the Obligors’ Agent is prevented from doing so by any law
or regulation or confidentially undertaking binding on it; and


 


(b)           comply in all material
respects with:


 


(i)           all applicable laws and
regulations binding on it and relevant in the context of the  Acquisition; and


 


(ii)          the Acquisition Agreement
where failure to so comply would have a material adverse effect on the
business, assets or condition of the Group (which for these purposes includes
the Target and its Subsidiaries) taken as a whole.


 


46
















 


21.          FINANCIAL COVENANTS


 


21.1        Interpretation


 


Except as
provided to the contrary in this Agreement, an accounting term used in this
Clause is to be construed in accordance with the principles applied in
connection with the Original Financial Statements.


 


21.2        Gearing


 


Imperial shall
ensure that the ratio of Consolidated Total Net Borrowings at the end of each
Measurement Period ending on or after 1 March 2007 to Consolidated EBITDA for
that Measurement Period does not exceed 4.00:1.


 


21.3        Interest
cover


 


Imperial shall
ensure that the ratio of Consolidated EBITDA to Consolidated Net Interest
Payable for each Measurement Period ending on or after 1 March 2007 is not less
than 4.00:1.


 


22.          DEFAULT


 


22.1        Events
of Default


 


Each of the
events and circumstances set out in this Clause 22 is an Event of Default.


 


22.2        Non-payment


 


An Obligor does
not pay on the due date any amount payable by it under the Finance Documents at
the time, in the currency and in the manner specified in the Finance Documents
and (if caused by technical or administrative error) the failure to pay is not
remedied within five Business Days of the due date.


 


22.3        Breach
of Financial Covenant


 


(a)           Imperial is in
breach of its obligations under Clause 21.3 (Interest cover).


 


(b)           Imperial is in breach
of its obligations under Clause 21.2 (Gearing), unless it would not
otherwise be in breach of its obligations under that clause if for the purposes
of calculating the ratio of Consolidated Total Net Borrowings to Consolidated
EBITDA, Consolidated Total Net Borrowings had been calculated using the
currency translation criteria applied to continuing businesses in the latest
profit and loss account of the Group delivered under Clause 20.2
(Financial Information) in respect of the relevant Measurement Period which
means applying the average of the foreign exchange rates specified as the daily
rate of foreign exchange transactions between each relevant currency (other
than Sterling) and Sterling on the Reuters screen WMR spot 16 for each business
day of that Measurement Period of the Group, except that:


 


(i)            if the Reuters
screen WMR spot 16 is not available on any day, the next day on which the
Reuters screen WMR spot 16 is available will be used in applying the average of
the foreign exchange rates; and


 


(ii)           if the Reuters
screen WMR spot 16 is replaced or the service ceases to be available (for more
than 10 consecutive days), the Facility Agent (after consultation with the
Obligors’ Agent and the Lenders) may specify another page or service displaying
the appropriate rate.


 


47

















 


Imperial shall
supply to the Facility Agent details of the currency translation criteria
applied for the purpose of this clause together with each Compliance
Certificate under Clause 20.6 (Compliance Certificates).


 


22.4        Other
breaches


 


An Obligor fails
duly to perform or comply with any obligation expressed to be assumed by it in
the Finance Documents (other than any referred to in Clause 22.2
(Non-payment) or Clause 22.3 (Breach of Financial Covenant)) and the
default (if capable of remedy) is not remedied within thirty days after the
Facility Agent has given notice of the default to the relevant Obligor.


 


22.5        Misrepresentation


 


Any
representation or statement made by Imperial in this Agreement, any request or
any information provided pursuant to Clause 20.3 (Information -
Miscellaneous) is or proves to have been incorrect or misleading when made or
(if applicable) repeated and, where the circumstances making such representation
or statements incorrect or misleading are capable of being altered so that such
representation or statement is correct or not misleading, such circumstances
are not so altered within 30 days of the Facility Agent notifying Imperial of
such representations or statement being incorrect or misleading.


 


22.6        Cross-default


 


(a)           Any Financial
Indebtedness of a member of the Group is not paid when due or within any
originally applicable grace period.


 


(b)           Any Financial
Indebtedness of a member of the Group is declared to be or otherwise becomes
due and payable prior to its specified maturity by reason of a default or an
event of default (howsoever described).


 


(c)           Any creditor of a
member of the Group becomes entitled to declare any Financial Indebtedness of
all or any of the members of the Group due and payable prior to its specified
maturity as a result of a default or an event of default (howsoever described).


 


(d)           No Event of
Default will occur under paragraphs (a), (b) or (c) above if:


 


(i)            the aggregate
amount of the Financial Indebtedness concerned is Euro 35,000,000 (or
equivalent) or less; or


 


(ii)           (A)          the default or
event of default concerned arises immediately or promptly upon and directly or
indirectly as a result of an acquisition of the business or shares of another
company made by a member of the Group;


 


(B)           the Group has
financial resources available to it that are sufficient to refinance the
aggregate amount of such Financial Indebtedness without breaching the terms of
this Agreement; and


 


(C)           if applicable,
such Financial Indebtedness is repaid within 10 Business Days after becoming
due or being declared due and payable prior to its specified maturity (subject
to any originally applicable grace period).


 


22.7        Insolvency


 


A Material
Company:


 


48

















 


(a)           is unable to pay its debts
as they fall due; or


 


(b)           commences negotiations with
any one or more of its creditors with a view to the general readjustment or
rescheduling of its indebtedness; or


 


(c)           makes a general assignment
for the benefit of, or a composition with, its creditors.


 


22.8        Winding
up


 


A Material
Company takes any corporate action or other steps are taken or legal
proceedings are started for its winding-up, dissolution or reconstruction or
for the appointment of a receiver, administrative receiver, administrator or
similar officer of it or of all or any part (having an aggregate value of at
least Euro 35,000,000 (or equivalent)) of its assets or under Title 11 of the
United States of America Code entitled Bankruptcy (or any successor thereto) as
amended, except if, in any such case:


 


(a)           the Majority Lenders give
their consent; or


 


(b)           in the case of a Material
Company other than Imperial, for the purposes of a reorganisation or
reconstruction which is and remains on a solvent basis; or


 


(c)           it comprises action taken by
a creditor in the course of legal proceedings which can be demonstrated to be
an abuse of the process of the court or otherwise be frivolous or vexatious and
which are being contested in good faith by the relevant Material Company with a
reasonable prospect of success.


 


22.9        Creditors’
process


 


Any attachment,
sequestration, distress or execution affects all or any part (such part having
an aggregate value of at least Euro 35,000,000 (or equivalent)) of the assets
of a Material Company and is not discharged within 30 days.


 


22.10      Guarantee


 


Any guarantee
given pursuant to Clause 18 (Guarantee and Indemnity) is not effective, or
is alleged by the relevant Guarantor to be ineffective, for any reason.


 


22.11      Ownership
of the Obligors


 


Each Obligor (other than Imperial) is not or ceases
to be a direct or indirect wholly owned Subsidiary of Imperial.


 


22.12      Unlawfulness


 


It is or becomes
unlawful for an Obligor to perform any of its obligations under the Finance
Documents which obligations could reasonably be considered to be material to
the interests of the Finance Parties under the Finance Documents.


 


22.13      Repudiation


 


An Obligor
repudiates a Finance Document or evidences an intention to repudiate a Finance
Document.


 


49

















 


22.14      Cessation
of Business


 


A Material Company ceases or threatens to cease all
or the substantial part of its business except that a Material Company will not
be treated as having ceased to carry on all or the substantial part of its
business by reason of any disposal on arm’s length terms which is otherwise
permitted under the terms of this Agreement.


 


22.15      Litigation


 


(a)           Any litigation,
arbitration or administrative proceedings or governmental or regulatory
investigations, proceedings or disputes are commenced against a Material
Company which are or are reasonably likely to be determined adversely to it and
which, if so adversely determined, would have a Material Adverse Effect unless
such litigation, arbitration, proceeding, investigation or dispute is being
contested by such Material Company in good faith and a legal opinion is
delivered to the Facility Agent in form and substance acceptable to the Lenders
confirming that such Material Company has a reasonable prospect of success in
relation to that litigation.


 


(b)           Any litigation,
arbitration or administration proceedings or government or regulatory
investigations, proceedings or disputes are finally determined and such determination
has a Material Adverse Effect.


 


22.16      Acceleration


 


On and at any
time after the occurrence of an Event of Default which is then continuing, the
Facility Agent may, and shall if instructed to do so by the Majority Lenders,
by notice to the Obligors’ Agent:


 


(a)           cancel the Facility; and/or


 


(b)           declare that all the Loans,
together with accrued interest and all other amounts accrued under this
Agreement, be immediately due and payable, whereupon they shall become
immediately due and payable; and/or


 


(c)           demand that all Loans be
payable on demand, whereupon they shall immediately become payable on demand by
the Facility Agent on the instructions of the Majority Lenders; and/or


 


(d)           declare that full cash cover
in respect of each Letter of Credit is immediately due and payable.


 


22.17      Clean-up
Period


 


Notwithstanding
any other terms of this Agreement any event or circumstance which is in
existence on the first Utilisation Date and which would constitute a Default or
Event of Default will be deemed not to constitute a Default or Event of Default
during the Clean-up Period to the extent that:


 


(a)           such Event of Default
results from a default under or in respect of the existing Financial
Indebtedness of the Target caused by a change of control occurring as a result
of the Acquisition; or


 


(b)           such event or circumstance:


 


(i)            relates solely to the Target
and its Subsidiaries; and


 


(ii)           have not been procured,
solicited or approved by any member of the Group (which for these purposes
shall not include the Target and its Subsidiaries).


 


50

















 


23.          THE ADMINISTRATIVE PARTIES


 


23.1        Appointment
and duties of the Facility Agent


 


(a)           Each Finance
Party (other than the Facility Agent) irrevocably appoints the Facility Agent
to act as its agent under the Finance Documents.


 


(b)           Each Finance
Party irrevocably authorises the Facility Agent to:


 


(i)            perform the
duties and to exercise the rights, powers and discretions that are specifically
given to it under the Finance Documents, together with any other incidental
rights, powers and discretions; and


 


(ii)           execute each
Finance Document expressed to be executed by the Facility Agent.


 


(c)           The Facility
Agent has only those duties which are expressly specified in the Finance Documents.
Those duties are solely of a mechanical and administrative nature.


 


23.2        Role
of the Mandated Lead Arrangers


 


Except as
specifically provided in the Finance Documents, no Mandated Lead Arranger has
any obligations of any kind to any other Party in connection with any Finance
Document.


 


23.3        No
fiduciary duties


 


Except as
specifically provided in a Finance Document, nothing in the Finance Documents
makes an Administrative Party a trustee or fiduciary for any other Party or any
other person. No Administrative Party need hold in trust any moneys paid to it
for a Party or be liable to account for interest on those moneys.


 


23.4        Individual
position of an Administrative Party


 


(a)           If it is also a
Lender, each Administrative Party has the same rights and powers under the
Finance Documents as any other Lender and may exercise those rights and powers
as though it were not an Administrative Party.


 


(b)           Each
Administrative Party may:


 


(i)            carry on any
business with any Obligor or its related entities (including acting as an agent
or a trustee for any other financing); and


 


(ii)           retain any
profits or remuneration it receives under the Finance Documents or in relation
to any other business it carries on with any Obligor or its related entities.


 


23.5        Reliance


 


The Facility
Agent may:


 


(a)           rely on any notice or
document believed by it to be genuine and correct and to have been signed by,
or with the authority of, the proper person;


 


(b)           rely on any statement made
by any person regarding any matters which may reasonably be assumed to be
within his knowledge or within his power to verify;


 


51

















 


(c)           engage, pay for and rely on
professional advisers selected by it (including those representing a Party
other than the Facility Agent); and


 


(d)           act under the Finance
Documents through its personnel and agents.


 


23.6        Majority
Lenders’ instructions


 


(a)           The Facility
Agent is fully protected if it acts on the instructions of the Majority Lenders
in the exercise of any right, power or discretion or any matter not expressly
provided for in the Finance Documents. Any such instructions given by the
Majority Lenders will be binding on all the Lenders. In the absence of
instructions, the Facility Agent may act as it considers to be in the best
interests of all the Lenders.


 


(b)           The Facility
Agent is not authorised to act on behalf of a Lender (without first obtaining
that Lender’s consent) in any legal or arbitration proceedings in connection
with any Finance Document.


 


(c)           The Facility
Agent may require the receipt of security satisfactory to it, whether by way of
payment in advance or otherwise, against any liability or loss which it may
incur in complying with the instructions of the Majority Lenders.


 


23.7        Responsibility


 


(a)           No Administrative
Party is responsible to any other Finance Party for the adequacy, accuracy or
completeness of:


 


(i)            any Finance
Document or any other document; or


 


(ii)           any statement or
information (whether written or oral) made in or supplied in connection with
any Finance Document.


 


(b)           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 that it:


 


(i)            has made, and
will continue to make, its own independent appraisal of all risks arising under
or in connection with the Finance Documents (including the financial condition
and affairs of each Obligor and its related entities and the nature and extent
of any recourse against any Party or its assets); and


 


(ii)           has not relied
exclusively on any information provided to it by any Administrative Party in
connection with any Finance Document.


 


23.8        Exclusion
of liability


 


(a)           The Facility
Agent is not liable or responsible to any other Finance Party for any action
taken or not taken by it in connection with any Finance Document, unless
directly caused by its gross negligence or wilful misconduct.


 


(b)           No Party may take
any proceedings against any officer, employee or agent of the Facility Agent in
respect of any claim it might have against the Facility Agent or in respect of
any act or omission of any kind by that officer, employee or agent in
connection with any Finance Document. Any officer, employee or agent of the
Facility Agent may rely on this Clause 23.8 and enforce its terms under
the Contracts (Rights of Third Parties) Act 1999.


 


52

















 


(c)           (i)            Nothing in this
Agreement will oblige any Administrative Party to satisfy any know your
customer requirement in relation to the identity of any person on behalf of any
Finance Party.


 


(ii)           Each Finance
Party confirms to each Administrative Party that it is solely responsible for
any know your customer requirements it is required to carry out and that it may
not rely on any statement in relation to those requirements made by any other
person.


 


23.9        Default


 


(a)           The Facility
Agent is not obliged to monitor or enquire whether a Default has occurred. The
Facility Agent is not deemed to have knowledge of the occurrence of a Default.


 


(b)           If the Facility
Agent:


 


(i)            receives notice
from a Party referring to this Agreement, describing a Default and stating that
the event is a Default; or


 


(ii)           is aware of the
non-payment of any principal or interest or any fee payable to a Lender under
this Agreement,


 


it must promptly
notify the Lenders.


 


23.10      Information


 


(a)           The Facility
Agent must promptly forward to the person concerned the original or a copy of
any document which is delivered to it by a Party for that person.


 


(b)           Except where a
Finance Document specifically provides otherwise, the Facility Agent is not
obliged to review or check the adequacy, accuracy or completeness of any
document it forwards to another Party.


 


(c)           Except as
provided above, the Facility Agent has no duty:


 


(i)            either initially
or on a continuing basis to provide any Lender with any credit or other
information concerning the risks arising under or in connection with the
Finance Documents (including any information relating to the financial
condition or affairs of any Obligor or its related entities or the nature or
extent of recourse against any Party or its assets) whether coming into its
possession before, on or after the date of this Agreement; or


 


(ii)           unless
specifically requested to do so by a Lender in accordance with a Finance
Document, to request any certificate or other document from any Obligor.


 


(d)           In acting as the
Facility Agent, the agency division of the Facility Agent is treated as a
separate entity from its other divisions and departments. Any information
acquired by the Facility Agent which, in its opinion, is acquired by it
otherwise than in its capacity as the Facility Agent may be treated as
confidential by the Facility Agent and will not be treated as information
possessed by that Agent in its capacity as such.


 


(e)           The Facility
Agent is not obliged to disclose to any person any confidential information
supplied to it by a member of the Group solely for the purpose of evaluating
whether any waiver or amendment is required to any term of the Finance
Documents.


 


53

















 


(f)            Each Obligor
irrevocably authorises the Facility Agent to disclose to the other Finance
Parties any information which, in its opinion, is received by it in its
capacity as the Facility Agent.


 


23.11      Indemnities


 


(a)           Without limiting
the liability of any Obligor under the Finance Documents, each Lender must
indemnify the Facility Agent for that Lender’s Pro rata Share of any loss or
liability incurred by it in acting as the Facility Agent, except to the extent
that the loss or liability is caused by the Facility Agent’s gross negligence
or wilful misconduct.


 


(b)           The Facility
Agent may deduct from any amount received by it for a Lender any amount due to
it from that Lender under a Finance Document but unpaid.


 


23.12      Compliance


 


The Facility
Agent may refrain from doing anything (including disclosing any information)
which might, in its opinion, constitute a breach of any law or regulation or be
otherwise actionable at the suit of any person, and may do anything which, in
its opinion, is necessary or desirable to comply with any law or regulation.


 


23.13      Resignation
of the Facility Agent


 


(a)           The Facility
Agent may resign and appoint any of its Affiliates as a successor Facility
Agent by giving notice to the Lenders and the Obligors’ Agent.


 


(b)           Alternatively,
the Facility Agent may resign by giving notice to the Lenders and the Obligors’
Agent, in which case the Majority Lenders may appoint a successor Facility
Agent.


 


(c)           If no successor
Facility Agent has been appointed under paragraph (b) above within 30 days
after notice of resignation was given, the Facility Agent may appoint a
successor Facility Agent.


 


(d)           The person(s)
appointing a successor Facility Agent must, if practicable, consult with the
Obligors’ Agent prior to the appointment. Any successor Facility Agent must
have an office in the U.K. and must be capable of performing it’s obligations
under this Agreement.


 


(e)           The resignation
of the Facility Agent and the appointment of any successor Facility Agent will
both become effective only when the successor Facility Agent notifies all the
Parties that it accepts its appointment. On giving the notification, the
successor Facility Agent will succeed to the position of the Facility Agent which
it succeeds and the term Facility  Agent will mean the successor Facility Agent.


 


(f)            The retiring
Facility Agent must, at its own cost, make available to the successor Facility
Agent such documents and records and provide such assistance as the successor
Facility Agent may reasonably request for the purposes of performing its
functions as Facility Agent under the Finance Documents.


 


(g)           Upon its
resignation becoming effective, this Clause will continue to benefit the
retiring Facility Agent in respect of any action taken or not taken by it in
connection with the Finance Documents while it was a Facility Agent, and,
subject to paragraph (f) above, it will have no further obligations under any
Finance Document.


 


(h)           The Majority
Lenders may, by notice to the Facility Agent, require it to resign under
paragraph (b) above.


 


54

















 


23.14      Relationship
with Lenders


 


(a)           The Facility
Agent may treat each Lender as a Lender, entitled to payments under this
Agreement and as acting through its Facility Office(s) until it has received
not less than five Business Days’ prior notice from that Lender to the
contrary.


 


(b)           The Facility
Agent may at any time, and must if requested to do so by the Majority Lenders,
convene a meeting of the Lenders.


 


(c)           The Facility
Agent must keep a register of all the Parties and supply any other Party with a
copy of the register on request. The register will include each Lender’s
Facility Office(s) and contact details for the purposes of this Agreement.


 


23.15      Facility
Agents’ management time


 


If the Facility
Agent requires, any amount payable to the Facility Agent by any Party under any
indemnity or in respect of any costs or expenses incurred by the Facility Agent
under the Finance Documents after the date of this Agreement may include the
cost of using its management time or other resources and will be calculated on
the basis of such reasonable daily or hourly rates as the Facility Agent may
notify to the relevant Party. This is in addition to any amount in respect of
fees or expenses paid or payable to the Facility Agent under any other term of
the Finance Documents.


 


23.16      Notice
period


 


Where this
Agreement specifies a minimum period of notice to be given to the Facility
Agent, the Facility Agent may, at its discretion, accept a shorter notice
period.


 


24.          EVIDENCE AND CALCULATIONS


 


24.1        Accounts


 


Accounts
maintained by a Finance Party in connection with this Agreement are prima facie
evidence of the matters to which they relate for the purpose of any litigation
or arbitration proceedings.


 


24.2        Certificates
and determinations


 


Any certification
or determination by a Finance Party of a rate or amount under the Finance
Documents will be, in the absence of manifest error, conclusive evidence of the
matters to which it relates.


 


24.3        Calculations


 


Any interest or
fee accruing under this Agreement accrues from day to day and is calculated on
the basis of the actual number of days elapsed and a year of 360 or 365 days or
otherwise, depending on what the Facility Agent determines is market practice.


 


25.          FEES


 


25.1        Agent’s
fee


 


The Obligors’
Agent must pay to the Facility Agent for its own account an agency fee in the
amount set out in and in the manner agreed in the Fee Letter between the
Facility Agent and the Obligors’ Agent.


 


55

















 


25.2        Arrangement
fee


 


The Obligors’
Agent must pay to the Facility Agent for the account of the Mandated Lead
Arrangers an arrangement fee in the amount set out in and in the manner agreed
in the Fee Letter between the Mandated Lead Arrangers and the Obligors’ Agent.


 


25.3        Commitment
fee


 


(a)           The Obligors’
Agent must pay in respect of the Facilities a commitment fee computed at the
rate per annum equal to 0.10 per cent. on the undrawn, uncancelled amount of
each Lender’s Commitment.


 


(b)           Accrued
commitment fee is payable to the Facility Agent:


 


(i)            in respect of the
Availability Period relating to Loans on the later of the last day of that
Availability Period or the date falling five Business Days after the date on
which the Obligors’ Agent receives from the Facility Agent an invoice for such
amount; and


 


(ii)           thereafter,
quarterly in arrear on the later of the last day of the relevant quarter or the
date falling five Business Days after the date on which the Obligors’ Agent
receives from the Facility Agent an invoice for such amount.


 


25.4        Extension
Fee


 


(a)           If a Borrower
exercises the Extension Option the relevant Borrower will pay to the Facility
Agent for the account of the Lenders on the later of the Original Maturity Date
or the date falling five Business Days after the date on which the Obligors’
Agent receives from the Facility Agent an invoice for such amount an extension
fee equal to 0.05 per cent. of the Commitments extended on that date.


 


(b)           Fees payable
under paragraph (a) above are payable in U.S. Dollars.


 


25.5        VAT


 


Any fee referred to in this Clause 25 is
exclusive of any value added tax or any other tax which might be chargeable in
connection with that fee. If any value added tax or other tax is so chargeable,
it shall be paid by the Obligors’ Agent or Imperial Finance or Imperial Finance
2 (as applicable) at the same time as it pays the relevant fee.


 


26.          INDEMNITIES AND BREAK COSTS


 


26.1        Currency
indemnity


 


(a)           The Obligors’
Agent must, as an independent obligation, indemnify each Finance Party against
any loss or liability which that Finance Party incurs as a consequence of:


 


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


 


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


 


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


 


56

















 


(b)           Unless otherwise
required by law, each Obligor waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency other than that in
which it is expressed to be payable.


 


26.2        Other
indemnities


 


(a)           The Obligors’
Agent must indemnify each Finance Party against any cost, loss or liability
which that Finance Party incurs as a consequence of:


 


(i)            the occurrence of
any Event of Default;


 


(ii)           any failure by an
Obligor to pay any amount due under a Finance Document on its due date,
including any resulting from any distribution or redistribution of any amount
among the Lenders under this Agreement;


 


(iii)          (other than by
reason of negligence or default by that Finance Party) a Credit not being made
after a Request has been delivered for that Credit; or


 


(iv)          a Credit (or part
of a Credit) not being prepaid in accordance with a notice of prepayment.


 


The liability of
the Obligors’ Agent in each case includes any loss or expense on account of
funds borrowed, contracted for or utilised to fund any amount payable under any
Finance Document, any amount repaid or prepaid or any Credit.


 


(b)           The Obligors’
Agent must indemnify the Facility Agent against any cost, loss or liability
incurred by the Facility Agent as a result of:


 


(i)            investigating any
event which the Facility Agent reasonably believes to be a Default; or


 


(ii)           acting or relying
on any notice which the Facility Agent reasonably believes to be genuine,
correct and appropriately authorised.


 


26.3        Break
Costs


 


(a)           The Obligors’
Agent must pay to each Lender its Break Costs.


 


(b)           Break Costs are
the amount (if any) determined by the relevant Lender by which:


 


(i)            the interest
which that Lender would have received for the period from the date of receipt
of any part of its share in a Loan or an overdue amount to the last day of the
applicable Term for that Loan or overdue amount if the principal or overdue
amount received had been paid on the last day of that Term;


 


exceeds


 


(ii)           the amount which
that Lender would be able to obtain by placing an amount equal to the amount
received by it on deposit with a leading bank in the appropriate interbank
market for a period starting on the Business Day following receipt and ending
on the last day of the applicable Term.


 


(c)           Each Lender must
supply to the Facility Agent for the Obligors’ Agent details of the amount of
any Break Costs claimed by it under this Clause 26.3.


 


57

















 


27.          EXPENSES


 


27.1        Initial
costs


 


The Obligors’
Agent must pay to each Administrative Party the amount of all reasonable costs
and expenses (including reasonable legal fees) properly incurred by it in
connection with the negotiation, preparation, printing, execution and
syndication of the Finance Documents provided such costs and expenses do not
exceed the amounts agreed by the Obligors’ Agent and the Mandated Lead
Arrangers on or before the date of this Agreement.


 


27.2        Subsequent
costs


 


The Obligors’
Agent must pay to the Facility Agent the amount of all reasonable costs and
expenses (including reasonable legal fees) properly incurred by it in
connection with:


 


(a)           the negotiation,
preparation, printing and execution of any Finance Document (other than a
Transfer Certificate) executed after the date of this Agreement; and


 


(b)           any amendment, waiver or
consent requested by or on behalf of an Obligor or specifically allowed by this
Agreement.


 


27.3        Enforcement
costs


 


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


 


28.          AMENDMENTS AND WAIVERS


 


28.1        Procedure


 


(a)           Except as
provided in this Clause 28, any term of the Finance Documents may be
amended or waived with the agreement of the Obligors’ Agent and the Majority
Lenders. The Facility Agent may effect, on behalf of any Finance Party, an
amendment or waiver allowed under this Clause 28.


 


(b)           The Facility
Agent must promptly notify the other Parties of any amendment or waiver
effected by it under paragraph (a) above. Any such amendment or waiver is
binding on all the Parties.


 


28.2        Exceptions


 


(a)           An amendment or
waiver which relates to:


 


(i)            the definition of
Majority  Lenders
in Clause 1.1 (Definitions);


 


(ii)           an extension of
the date of payment of any amount to a Lender under the Finance Documents
except for any extension pursuant to the Extension Option;


 


(iii)          a reduction in
the Margin or a reduction in the amount of any payment of principal, interest,
fee or other amount payable to a Lender under the Finance Documents;


 


(iv)          an increase in,
or an extension of, a Commitment or the Total Commitments except in accordance
with the terms of this Agreement;


 


(v)           a release of a
Borrower or a Guarantor;


 


58

















 


(vi)          a term of a
Finance Document which expressly requires the consent of each Lender;


 


(vii)         the right of a
Lender to assign or transfer its rights or obligations under the Finance
Documents; or


 


(viii)        this
Clause 28.2,


 


may only be made
with the consent of all the Lenders.


 


(b)           An amendment or
waiver which relates to the rights or obligations of an Administrative Party
may only be made with the consent of that Administrative Party.


 


28.3        Change
of currency


 


If a change in
any currency of a country occurs (including where there is more than one
currency or currency unit recognised at the same time as the lawful currency of
a country), the Finance Documents will be amended to the extent the Facility
Agent (acting reasonably and after consultation with the Obligors’ Agent)
determines is necessary to reflect the change.


 


28.4        Waivers
and remedies cumulative


 


The rights of
each Finance Party under the Finance Documents:


 


(a)           may be exercised as often as
necessary;


 


(b)           are cumulative and not
exclusive of its rights under the general law; and


 


(c)           may be waived only in
writing and specifically.


 


Delay in
exercising or non-exercise of any right is not a waiver of that right.


 


29.          CHANGES TO THE PARTIES


 


29.1        Assignments
and transfers by Obligors


 


No Obligor may
assign or transfer any of its rights and obligations under the Finance
Documents without the prior consent of all the Lenders.


 


29.2        Assignments
and transfers by Lenders


 


(a)           A Lender (the Existing  Lender) may,
subject to the following provisions of this Clause 29.2, Clause 29.3
(Assignments and transfers – Issuing Bank) and the terms of the Syndication
Letter, at any time assign or transfer (including by way of novation) any of its
rights and obligations under this Agreement to any other person (a New  Lender).


 


(b)           The written
consent of the Obligors’ Agent is required for any assignment or transfer. The
consent of the Obligors’ Agent must not be unreasonably withheld or delayed in
the case of a proposed Lender whose published long term credit rating is equal
to or higher than BBB in the case of Standard & Poor’s and/or Baa2 in the
case of Moody’s.


 


(c)           The Obligors’
Agent will, in the case of a transfer of rights and obligations in respect of
the Facility, be deemed to have given its consent five Business Days after the
Obligors’ Agent is given notice of the request unless it is expressly refused
by the Obligors’ Agent within that time.


 


59

















 


(d)           Unless the
Obligors’ Agent and the Facility Agent, acting reasonably, otherwise agree, a
transfer of part of a Commitment under this Agreement by the Existing Lender
must not result in that Existing Lender or the New Lender having a Commitment in
any Facility of less than $50,000,000 (the Minimum Commitment Amount).
Any transfer of part of a Commitment held by The Royal Bank of Scotland plc or
The Royal Bank of Scotland Finance (Ireland) must not result in the total
Commitment of The Royal Bank of Scotland plc and The Royal Bank of Scotland
Finance (Ireland) when taken together falling below the Minimum Commitment
Amount.


 


(e)           The Facility
Agent is not obliged to execute a Transfer Certificate or approve any
confirmation in accordance with paragraph (f)(ii) below until it has completed
all know your customer requirements to its satisfaction. The Facility Agent
must complete all know your customer requirements expeditiously and must
promptly notify the Existing Lender and the New Lender if there are any such
requirements.


 


(f)            A transfer of
obligations will be effective only if either:


 


(i)            the obligations
are novated in accordance with the following provisions of this Clause 29;
or


 


(ii)           the New Lender
confirms to the Facility Agent and the Obligors’ Agent in form and substance
satisfactory to the Facility Agent and Obligors’ Agent that it is bound by the
terms of this Agreement as a Lender. On the transfer becoming effective in this
manner the Existing Lender will be released from its obligations under this
Agreement to the extent that they are transferred to the New Lender.


 


(g)           Unless the
Facility Agent otherwise agrees, the New Lender must pay to the Facility Agent
for its own account, on or before the date any assignment or transfer occurs, a
fee of $2,000.


 


(h)           Any reference in
this Agreement to a Lender includes a New Lender but excludes a Lender if no
amount is or may be owed to or by it under this Agreement.


 


29.3        Assignments
and transfers – Issuing Bank


 


The consent of
the Issuing Bank (not to be unreasonably withheld or delayed) is required for
any assignment or transfer of any Lenders rights and obligations under this
Agreement.


 


29.4        Procedure
for transfer by way of novations


 


(a)           A novation is
effected if:


 


(i)            the Existing
Lender and the New Lender deliver to the Facility Agent a duly completed
Transfer Certificate; and


 


(ii)           the Facility
Agent executes it.


 


Subject to
Clause 29.2(e) (Assignments and transfers by Lenders), the Facility Agent
must execute as soon as reasonably practicable a Transfer Certificate delivered
to it and which appears on its face to be in order.


 


(b)           Each Party (other
than the Existing Lender and the New Lender) irrevocably authorises the
Facility Agent to execute any duly completed Transfer Certificate on its behalf.


 


(c)           On the Transfer
Date:


 


60

















 


(i)            the New Lender
will assume the rights and obligations of the Existing Lender expressed to be
the subject of the novation in the Transfer Certificate in substitution for the
Existing Lender; and


 


(ii)           the Existing
Lender will be released from those obligations and cease to have those rights.


 


(d)           The Facility
Agent must, as soon as practicable after it has executed a Transfer
Certificate, send to the Obligors’ Agent a copy of that Transfer Certificate.


 


29.5        Limitation
of responsibility of Existing Lender


 


(a)           Unless expressly
agreed to the contrary, an Existing Lender is not responsible to a New Lender
for the legality, validity, adequacy, accuracy, completeness or performance of:


 


(i)            any Finance
Document or any other document; or


 


(ii)           any statement or
information (whether written or oral) made in or supplied in connection with
any Finance 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
will continue to make, its own independent appraisal of all risks arising under
or in connection with the Finance Documents (including the financial condition
and affairs of each Obligor and its related entities and the nature and extent
of any recourse against any Party or its assets) in connection with its
participation in this Agreement; and


 


(ii)           has not relied
exclusively on any information supplied to it by the Existing Lender in
connection with any Finance Document.


 


(c)           Nothing in any
Finance Document requires 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 29; or


 


(ii)           support any
losses incurred by the New Lender by reason of the non-performance by either
Obligor of its obligations under any Finance Document or otherwise.


 


29.6        Costs
resulting from change of Lender or Facility Office


 


If:


 


(a)           a Lender assigns or
transfers any of its rights and obligations under the Finance Documents or
changes its Facility Office; and


 


(b)           as a result of circumstances
existing at the date the assignment, transfer or change occurs, an Obligor
would be obliged to pay a Tax Payment or an Increased Cost,


 


the Obligor need
only pay that Tax Payment or Increased Cost to the same extent that it would
have been obliged to if no assignment, transfer or change had occurred.


 


61

















 


29.7        Additional
Guarantors


 


(a)           If Imperial
wishes one of its directly or indirectly wholly-owned Subsidiaries to become an
Additional Guarantor then it may deliver to the Facility Agent the relevant
documents and evidence listed in Part 2 of Schedule 2 (Conditions Precedent
Documents).


 


(b)          The Obligors’ Agent shall,
by not less than 10 Business Days’ prior written notice to the Facility Agent,
notify the Facility Agent (which shall promptly notify the Lenders) of its
intention to request that one of its Subsidiaries becomes an Additional
Guarantor pursuant to this Clause 29.7.


 


(c)           If the accession
of an Additional Guarantor requires any Finance Party to carry out know your
customer requirements in circumstances where the necessary information is not
already available to it, the Obligors’ Agent must as soon as reasonably
practicable on request by any Finance Party supply to that Finance Party any
documentation or other evidence which is reasonably requested by that Finance
Party (whether for itself, on behalf of any Finance Party or any prospective
new Lender) to enable a Finance Party or prospective new Lender to carry out
and be satisfied with the results of all applicable know your customer
requirements. Each Finance Party must complete all know your customer
requirements in relation to an Additional Guarantor expeditiously and must
promptly notify the Existing Lender and the Additional Guarantor if there are
any such requirements.


 


(d)           The relevant
Subsidiary will become an Additional Guarantor when the Facility Agent notifies
the other Finance Parties and Imperial that it has received all of the
documents and evidence referred to in paragraph (a) above. The Facility Agent
must give this notification as soon as practicable.


 


29.8        Resignation
of the Guarantor


 


(a)           The Obligors’
Agent may request that a Guarantor ceases to be a Guarantor by giving to the
Facility Agent a duly completed Resignation Request.


 


(b)           The Facility
Agent must accept a Resignation Request and notify the Obligors’ Agent and the
Lenders of its acceptance if:


 


(i)            the Lenders have
consented to the Resignation Request;


 


(ii)           it is not aware
that a Default is outstanding or would result from the acceptance of the
Resignation Request; and


 


(iii)          no amount owed by
that Guarantor under this Agreement is still outstanding.


 


(c)           The Guarantor
will cease to be a Guarantor when the Facility Agent gives the notification
referred to in paragraph (b) above.


 


(d)           A Guarantor may
also cease to be a Guarantor in any other manner approved by the Lenders.


 


29.9        Changes
to the Reference Banks


 


If a Reference
Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an
Affiliate) ceases to be a Lender, the Facility Agent must (in consultation with
the Obligors’ Agent) appoint another Lender or an Affiliate of a Lender to
replace that Reference Bank.


 


62
















 


30.          DISCLOSURE OF INFORMATION


 


(a)           Each Finance
Party must keep confidential any information supplied to it by or on behalf of
any Obligor in connection with the Finance Documents. However, a Finance Party
is entitled to disclose information:


 


(i)            which is publicly
available, other than as a result of a breach by that Finance Party of this
Clause 30;


 


(ii)           in connection
with any legal or arbitration proceedings;


 


(iii)          if required to do
so under any law or regulation;


 


(iv)          to a
governmental, banking, taxation or other regulatory authority;


 


(v)           to its
professional advisers;


 


(vi)          to the extent
allowed under paragraph (b) below; or


 


(vii)         with the prior
written agreement of the relevant Obligor.


 


(b)           A Finance Party
may disclose to an Affiliate or any person with whom it may enter, or has
entered into, any kind of transfer or other agreement permitted under this
Agreement (a proposed recipient):


 


(i)            a copy of any
Finance Document; and


 


(ii)           any information
which that Finance Party has acquired under or in connection with any Finance
Document.


 


However, before a
proposed recipient may receive any confidential information, it must enter into
a Confidentiality Undertaking.


 


(c)           This Clause
supersedes any previous confidentiality undertaking given by a Finance Party in
connection with this Agreement prior to it becoming a Party.


 


31.          SET-OFF


 


Following the
occurrence of an Event of Default which remains outstanding, a Finance Party
may combine, consolidate or merge all or any accounts of an Obligor with, or
liabilities to, that Finance Party and may set off any matured obligation owed
by an Obligor under this Agreement against an obligation (whether or not
matured) owed by the relevant Finance Party to that Obligor, regardless of the
place or payment, booking branch or currency of either obligations. If the
obligations are in different currencies, the Finance Party may convert either
obligation at a market rate of exchange in its usual course of business for the
purpose of the set-off.


 


32.          PRO RATA SHARING


 


32.1        Redistribution


 


If any amount
owing by an Obligor under this Agreement to a Lender (the recovering
Lender) is discharged by payment,
set-off or any other manner other than through the Facility Agent under this
Agreement (a recovery), then:


 


63

















 


(a)           the recovering Lender must,
within three Business Days, supply details of the recovery to the Facility
Agent;


 


(b)           the Facility Agent must
calculate whether the recovery is in excess of the amount which the recovering
Lender would have received if the recovery had been received and distributed by
the Facility Agent under this Agreement; and


 


(c)           the recovering Lender must
pay to the Facility Agent an amount equal to the excess (the redistribution).


 


32.2        Effect
of redistribution


 


(a)           The Facility
Agent must treat a redistribution as if it were a payment by the relevant
Obligor under this Agreement and distribute it among the Lenders, other than
the recovering Lender, accordingly.


 


(b)           When the Facility
Agent makes a distribution under paragraph (a) above, the recovering Lender
will be subrogated to the rights of the Finance Parties which have shared in
that redistribution.


 


(c)           If and to the
extent that the recovering Lender is not able to rely on any rights of subrogation
under paragraph (b) above, the relevant Obligor will owe the recovering Lender
a debt which is equal to the redistribution, immediately payable and of the
type originally discharged.


 


(d)           If:


 


(i)            a recovering
Lender must subsequently return a recovery, or an amount measured by reference
to a recovery, to an Obligor; and


 


(ii)           the recovering
Lender has paid a redistribution in relation to that recovery,


 


each Finance
Party must reimburse the recovering Lender all or the appropriate portion of
the redistribution paid to that Finance Party, together with interest for the
period while it held the re-distribution. In this event, the subrogation in
paragraph (b) above will operate in reverse to the extent of the reimbursement.


 


32.3        Exceptions


 


Notwithstanding
any other term of this Clause, a recovering Lender need not pay a
redistribution to the extent that:


 


(a)           it would not, after the
payment, have a valid claim against the relevant Obligor in the amount of the
redistribution; or


 


(b)           it would be sharing with
another Finance Party any amount which the recovering Lender has received or
recovered as a result of legal or arbitration proceedings, where:


 


(i)            the recovering Lender
notified the Facility Agent of those proceedings; and


 


(ii)           the other Finance Party had
an opportunity to participate in those proceedings but did not do so or did not
take separate legal or arbitration proceedings as soon as reasonably
practicable after receiving notice of them.


 


64

















 


33.          SEVERABILITY


 


If a term of a
Finance Document is or becomes illegal, invalid or unenforceable in any
jurisdiction, that shall not affect:


 


(a)           the legality, validity or
enforceability in that jurisdiction of any other term of the Finance Documents;
or


 


(b)           the legality, validity or
enforceability in other jurisdictions of that or any other term of the Finance
Documents.


 


34.          COUNTERPARTS


 


Each Finance
Document may be executed in any number of counterparts. This has the same
effect as if the signatures on the counterparts were on a single copy of the
Finance Document.


 


35.          NOTICES


 


In writing


 


(a)           Any communication in
connection with a Finance Document must be in writing and, unless otherwise
stated, may be given:


 


(i)            in person, by post or fax;
or


 


(ii)           if between the Facility
Agent and a Lender and the Facility Agent and the Lender agree, by e-mail or
other electronic communication.


 


(b)           For the purpose of the
Finance Documents, an electronic communication will be treated as being in
writing.


 


(c)           Unless it is agreed to the
contrary, any consent or agreement required under a Finance Document must be
given in writing.


 


35.2        Contact
details


 


(a)           Except as
provided below, the contact details of each Party for all communications in
connection with the Finance Documents are those notified by that Party for this
purpose to the Facility Agent on or before the date it becomes a Party.


 


(b)           The contact
details of the Obligors’ Agent, Imperial Finance 2 and Imperial for this
purpose are:


 


	
   

  	
  Address:

  	
  PO Box 244

  
	
   

  	
   

  	
  Upton Road

  
	
   

  	
   

  	
  Bristol BS99 7UJ

  
	
   

  	
   

  	
   

  
	
   

  	
  Fax number:

  	
  0117 966 7957

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  John Jones

  



 


(c)           The contact
details of the Facility Agent for this purpose are:


 


(i)            for operational
duties (such as drawdown, interest rate fixing, interest/fee calculations and payments):


 


65

















 


	
   

  	
  Address:

  	
  Level 3

  
	
   

  	
   

  	
  21⁄2 Devonshire
  Square

  
	
   

  	
   

  	
  London

  
	
   

  	
   

  	
  EC2M 4XJ

  
	
   

  	
   

  	
   

  
	
   

  	
  Fax number:

  	
  +44 (0)20 7615
  7673

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Loans
  Administration/LAU

  



 


(ii)           for
non-operational matters (such as documentation covenant compliance, amendments
and waivers):


 


	
   

  	
  Address:

  	
  Level 5

  
	
   

  	
   

  	
  135 Bishopsgate

  
	
   

  	
   

  	
  London

  
	
   

  	
   

  	
  EC2M 3UR

  
	
   

  	
   

  	
   

  
	
   

  	
  Fax number:

  	
  +44 (0)20 7085 4564

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
  Mark Harrison, Director Syndicated Loans Agency

  
	
   

  	
   

  	
   

  
	
   

  	
  Email:

  	
  mark.harrison@rbos.com

  



 


(d)           Any Party may
change its contact details by giving five Business Days’ notice to the Facility
Agent or (in the case of the Facility Agent) to the other Parties.


 


(e)           Where a Party
nominates a particular department or officer to receive a communication, a
communication will not be effective if it fails to specify that department or
officer.


 


35.3        Effectiveness


 


(a)           Except as
provided below, any communication in connection with a Finance Document will be
deemed to be given as follows:


 


(i)            if delivered in
person, at the time of delivery;


 


(ii)           if posted, five
days after being deposited in the post, postage prepaid, in a correctly
addressed envelope; and


 


(iii)          if by fax, when
received in legible form.


 


(b)           A communication
given under paragraph (a) above but received on a non-working day or after
business hours in the place of receipt will only be deemed to be given at 9.00
a.m. on the next working day in that place.


 


(c)           A communication
to the Facility Agent will only be effective on actual receipt by it.


 


35.4        Obligors


 


(a)           All formal
communications under the Finance Documents to or from an Obligor must be sent
through the Facility Agent.


 


(b)           All formal
communications under the Finance Documents to or from an Obligor (other than
the Obligors’ Agent) must be sent through the Obligors’ Agent.


 


66

















 


(c)           Each Obligor
(other than the Obligors’ Agent) irrevocably appoints the Obligors’ Agent to
act as its agent and irrevocably authorises the Obligors’ Agent to:


 


(i)            give and receive
all communications under the Finance Documents;


 


(ii)           supply all
information concerning itself to any Finance Party; and


 


(iii)          sign all
documents under or in connection with the Finance Documents.


 


(d)           Any communication
given to the Obligors’ Agent in connection with a Finance Document will be
deemed to have been given also to each other Obligor.


 


(e)           The Facility
Agent may assume that any communication made by the Obligors’ Agent is made
with the consent of each other Obligor.


 


35.5        Personal
Liability


 


If an individual
signs a certificate on behalf of a Party and the certificate proves to be
incorrect, the individual will incur no personal liability as a result, unless
the individual acted fraudulently or recklessly in giving the certificate. In
this case any liability of the individual will be determined in accordance with
applicable law.


 


36.          LANGUAGE


 


(a)           Any notice given
in connection with a Finance Document must be in English.


 


(b)           Any other
document provided in connection with a Finance Document must be:


 


(i)            in English; or


 


(ii)           (unless the
Facility Agent otherwise agrees) accompanied by a certified English translation.
In this case, the English translation prevails unless the document is a
statutory or other official document.


 


37.          GOVERNING LAW


 


This Agreement is
governed by English law.


 


38.          JURISDICTION


 


(a)           The English
courts have exclusive jurisdiction to settle any dispute in connection with any
Finance Document.


 


(b)           The English
courts are the most appropriate and convenient courts to settle any such
dispute and each Obligor waives objection to those courts on the grounds of
inconvenient forum or otherwise in relation to proceedings in connection with
any Finance Document.


 


(c)           This Clause is
for the benefit of the Finance Parties only. To the extent allowed by law, a
Finance Party may take:


 


(i)            proceedings in
any other court; and


 


(ii)           concurrent
proceedings in any number of jurisdictions.


 


67

















 


39.          WAIVER OF TRIAL BY JURY


 


EACH PARTY WAIVES
ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION IN
CONNECTION WITH ANY FINANCE DOCUMENT OR ANY TRANSACTION CONTEMPLATED BY ANY
FINANCE DOCUMENT. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO TRIAL BY
THE COURT.


 


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


 


68

















 


SCHEDULE 1


 


COMMITMENTS


 


	
  Name of
  Original Lender

  	
   

  	
  Commitments

  	
   

  
	
   

  	
   

  	
  (US$)

  	
   

  
	
  Citibank, N.A., London Branch

  	
   

  	
  950,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The Royal Bank of Scotland Finance (Ireland)

  	
   

  	
  300,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The Royal Bank of Scotland plc

  	
   

  	
  650,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  1,900,000,000

  	
   

  



 


69

















 


SCHEDULE 2


 


CONDITIONS PRECEDENT DOCUMENTS


 


PART 1


 


TO BE DELIVERED BEFORE FIRST REQUEST


 


1.             Obligors


 


(a)           A
copy of the constitutional documents of each Obligor.


 


(b)           A
resolution of the board of directors of each Obligor approving the terms of,
and the transactions contemplated by, this Agreement.


 


(c)           A
specimen of the signature of each person authorised on behalf of each Obligor
to execute or witness the execution of any Finance Document or to sign or send
any Request, document or notice in connection with any Finance Document.


 


2.             Legal opinions


 


A legal opinion
of Clifford Chance LLP, legal advisers to the Mandated Lead Arrangers and the
Facility Agent substantially in the form distributed to the Lenders prior to
the date of this Agreement, addressed to the Finance Parties.


 


3.             Miscellaneous


 


(a)           A
copy of the Litigation Report.


 


(b)           A
copy of the Original Financial Statements.


 


 


70

















 


PART 2


 


FOR AN ADDITIONAL GUARANTOR


 


Additional Guarantors


 


1.             A
Guarantor Accession Agreement, duly executed by the Obligors’ Agent and the
Additional Guarantor.


 


2.             A
copy of the constitutional documents of the Additional Guarantor.


 


3.             A
copy of a resolution of the board of directors of the Additional Guarantor
approving the terms of, and the transactions contemplated by, the Guarantor
Accession Agreement.


 


4.             A
specimen of the signature of each person authorised on behalf of the Additional
Guarantor to execute or witness the execution of any Finance Document.


 


5.             In
the case of an Additional Guarantor incorporated in the U.K., a copy of a
resolution, signed by all (or any lower percentage agreed by the Facility
Agent) of the holders of its issued or allotted shares, approving the terms of,
and the transactions contemplated by, the Guarantor Accession Agreement.


 


6.             A
certificate of an authorised signatory of the Additional Guarantor certifying
that each copy document specified in Part 2 of this Schedule is correct,
complete and in full force and effect as at a date no earlier than the date of
the Guarantor Accession Agreement.


 


7.             If
available, a copy of the latest audited accounts of the Additional Guarantor.


 


8.             For
any Additional Guarantor which is not incorporated under the laws of England
and Wales, evidence that its agent under the Finance Documents for service of
process in England has accepted its appointment.


 


Legal opinions


 


1.             A
legal opinion of legal advisers in England and Wales addressed to the Finance
Parties.


 


2.             If
the Additional Guarantor is incorporated in a jurisdiction other than England
and Wales, a legal opinion from legal advisers in that jurisdiction, addressed
to the Finance Parties.


 


71

















 


SCHEDULE 3


 


FORM OF NOTICES


 


PART 1


 


FORM OF REQUEST


 


To:          [l] as
Facility Agent


 


From:      [               ]


 


Date:       [               ]


 


[IMPERIAL TOBACCO FINANCE PLC/IMPERIAL TOBACCO
ENTERPRISE FINANCE LIMITED/IMPERIAL TOBACCO FINANCE (2) PLC] – US$1,900,000,000


Credit Agreement dated [l] 2007


(the Agreement)


 


1.             We
refer to the Agreement. This is a Request.


 


2.             We
wish to [borrow a Loan]/[arrange for a Letter of Credit to be issued] on the
following terms:


 


(a)           Borrower:                          [               ]


 


(b)           Utilisation
Date:                [               ]


 


(c)           Amount/currency:             [               ]


 


(d)           Term:                                 [               ]


 


(e)           [Maturity
Date [if Letter of Credit]:         [         ]


 


(f)            [Beneficiary
[if Letter of Credit]:             [         ]


 


3.             Our
[payment/delivery] instructions are:       [         ].


 


4.             We
confirm that each condition precedent under the Agreement which must be
satisfied on the date of this Request is so satisfied.


 


5.             [We
attach a copy of the proposed Letter of Credit.]


 


6.             This
Request is irrevocable.


 


 


[               ]


 


By:


 


72

















 


PART 2


 


FORM OF GUARANTOR ACCESSION AGREEMENT


 


To:          [l] as
Facility Agent


 


From:      Imperial Tobacco
Finance PLC and [Proposed Guarantor]


 


Date:       [               ]


 


IMPERIAL
TOBACCO FINANCE PLC - US$1,900,000,000


Credit Agreement dated [l] 2007


(the Agreement)


 


1.             We
refer to the Agreement. This is a Guarantor Accession Agreement.


 


2.             [Name
of company] of [address/registered office] agrees to become an Additional
Guarantor and to be bound by the terms of the Agreement as an Additional
Guarantor.


 


3.             This Guarantor
Accession Agreement is a Finance Document.


 


4.             This Guarantor
Accession Agreement is governed by English law.


 


 


IMPERIAL
TOBACCO FINANCE PLC


 


By:


 


 


[PROPOSED GUARANTOR]


 


73
















 


Schedule
4


 


Calculation of
the Mandatory Cost


 


1.             General


 


(a)           The Mandatory Cost is to
compensate a Lender for the cost of compliance with:


 


(i)            the requirements of the Bank
of England and/or the Financial Services Authority (or, in either case, any
other authority which replaces any of its functions); or


 


(ii)           the requirements of the
European Central Bank.


 


(b)           The Mandatory Cost is
expressed as a percentage rate per annum.


 


(c)           The Mandatory Cost is the
weighted average (weighted in proportion to the percentage share of each Lender
in the relevant Loan) of the rates for the Lenders calculated by the Facility
Agent in accordance with this Schedule on the first day of a Term (or as soon
as possible after then).


 


(d)           The Facility Agent must
distribute each amount of Mandatory Cost among the Lenders on the basis of the
rate for each Lender.


 


(e)           Any determination by the
Facility Agent pursuant to this Schedule will be, in the absence of manifest
error, conclusive and binding on all the Parties.


 


2.             For a Lender lending from a
Facility Office in the U.K.


 


(a)           The relevant rate for a
Lender lending from a Facility Office in the U.K. is calculated in accordance
with the following formulae:


 


for a Loan in Sterling:


 





 


for any other Loan:


 





 


where on the day of application of the formula:


 


A             is the percentage of that
Lender's eligible liabilities (in excess of any stated minimum) which the Bank
of England requires it to hold on a non-interest-bearing deposit account in
accordance with its cash ratio requirements;


 


B             is the percentage rate of
LIBOR and, if a Loan is due and payable but unpaid by a Borrower, the
additional rate of interest specified in Clause 11.4 (Interest on overdue
amounts), for the relevant Term;


 


C             is the percentage (if any)
of that Lender's eligible liabilities which the Bank of England requires it to
place as an interest bearing special deposit;


 


74

















 


D             is the percentage rate per
annum payable by the Bank of England on interest bearing special deposits; and


 


E              is calculated by the
Facility Agent as being the average of the rates of charge under the fees rules
supplied by the Reference Banks to the Facility Agent under paragraph (d)
below and expressed in pounds per £1 million.


 


(b)           For the purposes of this
paragraph 2:


 


(i)            eligible liabilities and
special deposit(s) have the meanings
given to them at the time of application of the formula pursuant to the Bank of
England Act 1988 or (as appropriate) by the Bank of England;


 


(ii)           fees rules
means the then current rules on periodic fees in the Supervision Manual of the
FSA Handbook or any other law or regulation as may then be in force for the
payment of fees for the acceptance of deposits; 


 


(iii)          fee tariffs
means the fee tariffs specified in the fees rules under fee-block Category A1
(Deposit acceptors) (ignoring any minimum fee or zero rated fee required
pursuant to the fees rules but applying any applicable discount rate); and


 


(iv)          tariff base has
the meaning given to it in, and will be calculated in accordance with, the fees
rules.


 


(c)           (i)            In the
application of the formulae, A, B, C and D are included as figures and not as
percentages, e.g. if A = 0.5% and B = 15%, AB is calculated as 0.5 x 15. A
negative result obtained by subtracting D from B is taken as zero.


 


(ii)           Each rate calculated in
accordance with a formula is, if necessary, rounded upward to four decimal
places.


 


(d)           If
requested by the Facility Agent, each Reference Bank must, as soon as
practicable after publication by the Financial Services Authority, supply to
the Facility Agent the rate of charge payable by that Reference Bank to the
Financial Services Authority under the fees rules for that financial year of
the Financial Services Authority (calculated by that Reference Bank as being
the average of the fee tariffs applicable to that Reference Bank for that
financial year) and expressed in pounds per £1 million of the tariff base of
that Reference Bank.


 


(e)           Each
Lender must supply to the Facility Agent the information required by it to make
a calculation of the rate for that Lender. In particular, each Lender must
supply the following information on or prior to the date on which it becomes a
Lender:


 


(i)            the jurisdiction of its
Facility Office; and


 


(ii)           any other information that
the Facility Agent reasonably requires for that purpose.


 


Each Lender must promptly notify the Facility Agent of any change to
the information supplied to it under this paragraph.


 


(f)            The percentages of each
Lender for the purposes of A and C above and the rates of charge of each
Reference Bank for the purpose of E above are determined by the Facility Agent
based upon the information supplied to it under paragraphs (d) and (e) above. Unless
a Lender notifies the Facility Agent to the contrary, the Facility Agent may
assume that the Lender's obligations in respect of cash ratio deposits and
special deposits are the same as those of a typical bank from its jurisdiction
of incorporation with a Facility Office in the U.K.


 


75

















 


(g)           The Facility Agent has no
liability to any Party if its calculation over or under compensates any Lender.
The Facility Agent is entitled to assume that the information provided by any
Lender or Reference Bank under this Schedule is true and correct in all
respects.


 


3.             For a Lender
lending from a Facility Office in a Participating Member State


 


(a)           The
relevant rate for a Lender lending from a Facility Office in a Participating
Member State is the percentage rate per annum notified by that Lender to the
Facility Agent. This percentage rate per annum must be certified by that Lender
in its notice to the Facility Agent as its reasonable determination of the cost
(expressed as a percentage of that Lender's share in all Loans made from that
Facility Office) of complying with the minimum reserve requirements of the
European Central Bank in respect of Loans made from that Facility Office.


 


(b)           If a Lender fails to specify
a rate under paragraph (a) above, the Facility Agent will assume that the Lender
has not incurred any such cost.


 


4.             Changes


 


(a)           The Facility Agent may,
after consultation with the Obligors' Agent and the Lenders, determine and
notify all the Parties of any amendment to this Schedule which is required to
reflect:


 


(i)            any change in law or
regulation; or


 


(ii)           any requirement imposed by
the Bank of England, the Financial Services Authority or the European Central
Bank (or, in any case, any successor authority).


 


(b)           If the Facility Agent, after
consultation with the Obligors' Agent, determines that the Mandatory Cost for a
Lender lending from a Facility Office in the U.K. can be calculated by
reference to a screen, the Facility Agent may notify all the Parties of any
amendment to this Agreement which is required to reflect this.


 


76

















 


Schedule 5


 


Form of Transfer
Certificate


 


To:          [•] as
Facility Agent


 


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


 


Date:       [               ]


 


IMPERIAL
TOBACCO FINANCE PLC - US$1,900,000,000


Credit Agreement dated [•] 2007


(the Agreement)


 


1.             We
refer to the Agreement. This is a Transfer Certificate.


 


2.             The
Existing Lender transfers by novation to the New Lender the Existing Lender's
rights and obligations referred to in the Schedule below in accordance with the
terms of the Agreement.


 


3.             The
proposed Transfer Date is
[               ].


 


4.             The
administrative details of the New Lender for the purposes of the Agreement are
set out in the Schedule.


 


5.             [The
Lender is a U.K. Non-Bank Lender.]  


 


6.             This
Transfer Certificate is governed by English law.


 


THE
SCHEDULE


 


Rights
and obligations to be transferred by novation


[insert relevant details,
including applicable Commitment (or part)]


 


Administrative
details of the New Lender


[insert details of Facility
Office, address for notices and payment details etc.]


 


	
  [EXISTING LENDER]

  	
  [NEW LENDER]

  
	
   

  	
   

  
	
  By:

  	
  By:

  
	
   

  	
   

  
	
  The Transfer Date is confirmed by the Facility Agent as
  [               ].

  
	
   

  	
   

  
	
  [FACILITY AGENT]

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  



 






(1)           Include if
applicable.


 


77

















 


Schedule 6


 


Form of
Compliance Certificate


 


To:          [•] as
Facility Agent


 


From:      Imperial Tobacco
Finance PLC


 


Date:       [               ]


 


IMPERIAL
TOBACCO FINANCE PLC - U.S.$1,900,000,000


Credit Agreement dated [•] 2007


(the Agreement)


 


1.             We
refer to the Agreement. This is a Compliance Certificate.


 


2.             We confirm that as at
[insert relevant testing date]:


 


(a)           Consolidated EBITDA was
[               ]
[(including Proforma EBITDA of
[               ]
in connection with the acquisition of
[               ])](2)
and Consolidated Total Net Borrowings were
[               ]
and therefore, the ratio of Consolidated Total Net Borrowings to Consolidated
EBITDA was
[               ];
and


 


(b)           Consolidated EBITDA
[(excluding Proforma EBITDA) was
[               ]]
and Consolidated Net Interest Payable was
[               ]
therefore, the ratio of Consolidated EBITDA to Consolidated Net Interest
Payable was [     ] to 1.


 


3.             We
set out below calculations establishing the figures in paragraph 2 above:


 


[               ].


 


4.             We
confirm that the following companies were Principal Subsidiaries at [insert
relevant testing date]: 


 


[               ].


 


5.             [We
confirm that no Default is outstanding as at [insert relevant testing
date].](3)


 


 


IMPERIAL
TOBACCO FINANCE PLC


 


By:


 


 






(2)           Include only for
any Measurement Period which includes the effective date of any acquisition or
investment.


(3)           This
statement need only be made if requested by the Facility Agent pursuant to
Clause Error! Reference source not
found. (Compliance Certificates). If this statement has
been requested by the Facility Agent but cannot be made, the certificate should
identify any Default that is outstanding and the steps, if any, being taken to
remedy it.


 


78

















 


Schedule 7


 


Form of
Resignation Request


 


To:          [•] as
Facility Agent


 


From:      Imperial Tobacco
Finance PLC


 


Date:       [               ]


 


IMPERIAL
TOBACCO FINANCE PLC - US$1,900,000,000


Credit Agreement dated [•] 2007


(the Agreement)


 


1.             We
refer to the Agreement. This is a Resignation Request.


 


2.             We
request that [resigning Guarantor] be released from its obligations as a
Guarantor under the Agreement.


 


3.             We
confirm that no Default is outstanding or would result from the acceptance of
this Resignation Request.


 


4.             We
confirm that as at the date of this Resignation Request no amount owed by
[resigning Guarantor] under the Agreement is outstanding.


 


5.             This
Resignation Request is governed by English law.


 


	
  IMPERIAL TOBACCO FINANCE PLC

  	
  [Relevant Guarantor]

  
	
   

  	
   

  
	
  By:

  	
  By:

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Facility Agent confirms that this resignation takes effect on
  [               ].

  
	
   

  	
   

  
	
  [FACILITY AGENT]

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
			



 


79

















 


Schedule 8


 


Form of Letter of Credit


 


To:          [Beneficiary]


(the Beneficiary)


 


[DATE]


 


Dear Sir,


 


Irrevocable
Standby Letter of Credit no.
[          ]


 


At the request of
[                    ],
The Royal Bank of Scotland plc (the Issuing Bank)
issues this irrevocable standby letter of credit (Letter of
Credit) in your favour on the following terms:


 


1.             Definitions


 


In this Letter of Credit:


 


Business Day means a day
(other than a Saturday or a Sunday) on which banks are open for general
business in [London].


 


Demand means a demand
for a payment under this Letter of Credit in the form of the schedule to this
Letter of Credit.


 


Expiry Date means
[                         ].


 


Total L/C Amount means
[                         ].


 


2.             Issuing Bank's
agreement


 


(a)           The Beneficiary may request
a drawing [or drawings] under this Letter of Credit by giving to the Issuing
Bank a duly completed Demand. A Demand may not be given after the Expiry Date.


 


(b)           Subject to the terms of this
Letter of Credit, the Issuing Bank unconditionally and irrevocably undertakes
to the Beneficiary that, within [10] Business Days of receipt by it of a Demand
validly presented under this Letter of Credit, it must pay to the Beneficiary
the amount which is demanded for payment in that Demand.


 


(c)           The Issuing Bank will not be
obliged to make a payment under this Letter of Credit if as a result the
aggregate of all payments made by it under this Letter of Credit would exceed
the Total L/C Amount.


 


3.             Expiry


 


(a)           On
[           ] p.m.
([London] time) on the Expiry Date the obligations of the Issuing Bank under
this Letter of Credit will cease with no further liability on the part of the
Issuing Bank except for any Demand validly presented under the Letter of Credit
that remains unpaid.


 


80

















 


(b)           The Issuing Bank will be
released from its obligations under this Letter of Credit on the date prior to
the Expiry Date (if any) notified by the Beneficiary to the Issuing Bank as the
date upon which the obligations of the Issuing Bank under this Letter of Credit
are released.


 


(c)           When the Issuing Bank is no
longer under any obligation under this Letter of Credit, the Beneficiary must
return the original of this Letter of Credit to the Issuing Bank.


 


4.             Payments


 


All payments under this Letter of Credit must be made in
[           ] and for
value on the due date to the account of the Beneficiary specified in the
Demand.


 


5.             Delivery of
Demand


 


Each Demand must be in writing, and may be given in person, by post,
fax or any other electronic communication and must be received by the Issuing
Bank at its address as follows:


 


[


 


]


 


For the purpose of this Letter of Credit, electronic communication will
be treated as being in writing.


 


6.             Assignment


 


The Beneficiary's rights under this Letter of Credit may not be
assigned or transferred.


 


7.             ISP


 


Except to the extent it is inconsistent with the express terms of this
Letter of Credit, this Letter of Credit is subject to the International Standby
Practices 1998 (International Chamber of Commerce Publication No. 590).


 


8.             Governing Law


 


This Letter of Credit is governed by English law.


 


9.             Jurisdiction


 


The English courts have exclusive jurisdiction to settle any dispute in
connection with this Letter of Credit.


 


Yours faithfully,


 


 


THE ROYAL BANK OF
SCOTLAND PLC


 


By:


 


81

















 


SCHEDULE


 


FORM
OF DEMAND


 


To:          The Royal Bank of
Scotland plc


 


[DATE]


 


Dear Sirs


 


Irrevocable
Standby Letter of Credit no. [           ] issued in favour of [BENEFICIARY] (the Letter of
Credit)


 


We refer to the
Letter of Credit. Terms defined in the Letter of Credit have the same meaning
when used in this Demand.


 


1.             We
certify that the sum of
[          ] is due [and has
remained unpaid for at least [    ] Business Days under [set
out underlying contract or agreement]]. We therefore demand payment of the sum
of [          ].


 


2.             Payment
should be made to the following account:


 


Name:


 


Account Number:


 


Bank:


 


3.             The
date of this Demand is not later than the Expiry Date.


 


Yours faithfully


 


 




	
  (Authorised Signatory)

  	
   

  	
  (Authorised Signatory)

  






 


 


For


[BENEFICIARY]


 


82

















 


Signatories


 


Borrowers


 


IMPERIAL
TOBACCO FINANCE PLC


 


By:          JOHN JONES


 


 


IMPERIAL
TOBACCO FINANCE (2) PLC


 


By:          JOHN JONES


 


 


IMPERIAL
TOBACCO ENTERPRISE FINANCE LIMITED


 


By:          JOHN JONES


 


 


Original
Guarantors


 


IMPERIAL
TOBACCO GROUP PLC


 


By:          JOHN JONES


 


 


IMPERIAL
TOBACCO LIMITED


 


By:          JOHN JONES


 


 


Mandated
Lead Arrangers


 


CITIGROUP GLOBAL MARKETS LIMITED


 


By:          PAUL
GIBBS


 


 


THE ROYAL BANK OF SCOTLAND PLC


 


By:          VICTORIA
READ


 


83

















 


The
Lenders


 


CITIBANK,
N.A., LONDON BRANCH


 


By:          PAUL
GIBBS


 


 


THE
ROYAL BANK OF SCOTLAND FINANCE (IRELAND)


 


By:          GER PRENDERGAST                       FERGUS
O'DONNELL


 


 


THE
ROYAL BANK OF SCOTLAND PLC


 


By:          IAN ROBERTSON


 


 


 


Issuing
Bank


 


THE
ROYAL BANK OF SCOTLAND PLC


 


By:          IAN ROBERTSON


 


 


 


Facility
Agent


 


THE
ROYAL BANK OF SCOTLAND PLC


 


By:          MARK HARRISON


 


84