Exhibit 4.17


 


CONFORMED COPY


 


AGREEMENT


 


18 JULY 2007


(as amended by a
syndication and amendment agreement dated 22 August 2007)


 


COMMITTED


 


and


 


UNCOMMITTED


 


CREDIT FACILITIES


 


for


 


IMPERIAL TOBACCO
FINANCE PLC


 


IMPERIAL TOBACCO
ENTERPRISE FINANCE LIMITED


 


as Borrowers


 


and


 


IMPERIAL TOBACCO
GROUP PLC


 


IMPERIAL TOBACCO
LIMITED


 


as Guarantors


 


with


 


THE ROYAL BANK OF
SCOTLAND PLC


 


as Facility Agent


 


and


 


THE ROYAL BANK OF
SCOTLAND PLC


 


as U.S. Dollar
Swingline Agent


 





 


Allen & Overy
LLP


 

















 


CONTENTS


 


	
  Clause

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Interpretation

  	
   

  	
  4

  
	
  2.

  	
   

  	
  Facilities

  	
   

  	
  30

  
	
  3.

  	
   

  	
  Purpose

  	
   

  	
  32

  
	
  4.

  	
   

  	
  Conditions Precedent and Certain Funds

  	
   

  	
  33

  
	
  5.

  	
   

  	
  Utilisation – Term Loan Facility and
  Revolving Credit Facility

  	
   

  	
  35

  
	
  6.

  	
   

  	
  Utilisation – Avales

  	
   

  	
  37

  
	
  7.

  	
   

  	
  Avales

  	
   

  	
  38

  
	
  8.

  	
   

  	
  Utilisation – Swingline Loans

  	
   

  	
  42

  
	
  9.

  	
   

  	
  Swingline Loans

  	
   

  	
  45

  
	
  10.

  	
   

  	
  Utilisation – Uncommitted Facility

  	
   

  	
  47

  
	
  11.

  	
   

  	
  Currencies

  	
   

  	
  50

  
	
  12.

  	
   

  	
  Repayment

  	
   

  	
  52

  
	
  13.

  	
   

  	
  Prepayment and
  Cancellation

  	
   

  	
  52

  
	
  14.

  	
   

  	
  Interest

  	
   

  	
  57

  
	
  15.

  	
   

  	
  Terms

  	
   

  	
  59

  
	
  16.

  	
   

  	
  Market Disruption

  	
   

  	
  61

  
	
  17.

  	
   

  	
  Taxes

  	
   

  	
  61

  
	
  18.

  	
   

  	
  Increased Costs

  	
   

  	
  65

  
	
  19.

  	
   

  	
  Mitigation

  	
   

  	
  66

  
	
  20.

  	
   

  	
  Payments

  	
   

  	
  66

  
	
  21.

  	
   

  	
  Guarantee and
  Indemnity

  	
   

  	
  69

  
	
  22.

  	
   

  	
  Representations

  	
   

  	
  71

  
	
  23.

  	
   

  	
  Undertakings

  	
   

  	
  73

  
	
  24.

  	
   

  	
  Offer Covenants

  	
   

  	
  79

  
	
  25.

  	
   

  	
  Financial Covenants

  	
   

  	
  81

  
	
  26.

  	
   

  	
  Default

  	
   

  	
  82

  
	
  27.

  	
   

  	
  The Administrative Parties

  	
   

  	
  86

  
	
  28.

  	
   

  	
  Evidence and Calculations

  	
   

  	
  90

  
	
  29.

  	
   

  	
  Fees

  	
   

  	
  91

  
	
  30.

  	
   

  	
  Indemnities and Break Costs

  	
   

  	
  93

  
	
  31.

  	
   

  	
  Expenses

  	
   

  	
  94

  
	
  32.

  	
   

  	
  Amendments and Waivers

  	
   

  	
  95

  
	
  33.

  	
   

  	
  Changes to the Parties

  	
   

  	
  96

  
	
  34.

  	
   

  	
  Disclosure of
  Information

  	
   

  	
  101

  
	
  35.

  	
   

  	
  Set-off

  	
   

  	
  102

  
	
  36.

  	
   

  	
  Pro rata sharing

  	
   

  	
  102

  
	
  37.

  	
   

  	
  Severability

  	
   

  	
  104

  
	
  38.

  	
   

  	
  Counterparts

  	
   

  	
  104

  
	
  39.

  	
   

  	
  Notices

  	
   

  	
  104

  
	
  40.

  	
   

  	
  Language

  	
   

  	
  106

  
	
  41.

  	
   

  	
  Governing Law

  	
   

  	
  107

  
	
  42.

  	
   

  	
  Jurisdiction

  	
   

  	
  107

  
	
  43.

  	
   

  	
  Waiver of Trial by Jury

  	
   

  	
  107

  



 

















 


	
  Schedule

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Original Parties

  	
   

  	
  108

  
	
   

  	
   

  	
  Part
  1

  	
  Mandated Lead Arrangers

  	
   

  	
  108

  
	
   

  	
   

  	
  Part
  2

  	
  Original Lenders

  	
   

  	
  109

  
	
   

  	
   

  	
  Part
  3

  	
  Issuing Entities

  	
   

  	
  110

  
	
  2.

  	
   

  	
  Conditions Precedent Documents

  	
   

  	
  111

  
	
   

  	
   

  	
  Part
  1

  	
  To be Delivered before First Request

  	
   

  	
  111

  
	
   

  	
   

  	
  Part
  2

  	
  Conditions Precedent to Drawdown of Loans on
  first cash Utilisation Date

  	
   

  	
  113

  
	
   

  	
   

  	
  Part
  3

  	
  For an Additional Guarantor

  	
   

  	
  114

  
	
  3.

  	
   

  	
  Form of Notices

  	
   

  	
  115

  
	
   

  	
   

  	
  Part
  1

  	
  Form of Request

  	
   

  	
  115

  
	
   

  	
   

  	
  Part
  2

  	
  Form of Swingline Extension Notice

  	
   

  	
  116

  
	
   

  	
   

  	
  Part
  3

  	
  Form of Commitment Request

  	
   

  	
  117

  
	
   

  	
   

  	
  Part 4

  	
  Form of Commitment Notice

  	
   

  	
  118

  
	
   

  	
   

  	
  Part
  5

  	
  Form of Acceptance

  	
   

  	
  119

  
	
   

  	
   

  	
  Part
  6

  	
  Form of Guarantor Accession Agreement

  	
   

  	
  120

  
	
  4.

  	
   

  	
  Calculation of the Mandatory Cost

  	
   

  	
  122

  
	
  5.

  	
   

  	
  Form of Transfer Certificate

  	
   

  	
  125

  
	
  6.

  	
   

  	
  Form of Compliance Certificate

  	
   

  	
  126

  
	
  7.

  	
   

  	
  Form of Resignation Request

  	
   

  	
  127

  
	
  8.

  	
   

  	
  Form of Indemnity Claim Notice

  	
   

  	
  128

  
	
  9.

  	
   

  	
  Form of Avales

  	
   

  	
  129

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signatories

  	
   

  	
  131

  



 

















 


THIS
AGREEMENT is dated 18 July 2007


 


BETWEEN:


 


(1)           IMPERIAL TOBACCO FINANCE
PLC (registered number 03214426) (Imperial
Finance) and IMPERIAL TOBACCO
ENTERPRISE FINANCE LIMITED (registered number 04856478) (each a Borrower);


 


(2)           IMPERIAL TOBACCO GROUP PLC
(registered number 03236483) (Imperial) and IMPERIAL TOBACCO LIMITED (registered number 01860181) (each
an Original  Guarantor);


 


(3)           THE FINANCIAL INSTITUTIONS
listed in Part 1 of Schedule 1 (Mandated Lead Arrangers) as mandated lead
arrangers (the Mandated Lead Arrangers);


 


(4)           THE FINANCIAL INSTITUTIONS
listed in Part 2 of Schedule 1 (Original Lenders) as original lenders (the Original Lenders);


 


(5)           THE FINANCIAL INSTITUTIONS
listed in Part 3 of Schedule 1
(Issuing Entities) as issuing entities (the Original
Issuing Entities);


 


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


 


(7)           THE ROYAL BANK OF SCOTLAND
PLC as agent in relation to drawings of the Swingline
Facility in U.S. Dollars (in this capacity, the U.S. Dollar
Swingline Agent).


 


IT IS
AGREED as follows:


 


1.             INTERPRETATION


 


1.1          Definitions


 


In this
Agreement:


 


Acceptance Notice means an
acceptance in respect of offers in respect of the Uncommitted Facility,
substantially in the form of Part 5 of Schedule 3 (Form of Acceptance).


 


Acceptable Transferee
means:


 


(a)           a New Lender
which has, or which is guaranteed by an entity which has, a long term credit
rating assigned to it which is no lower than A3 in the case of Moody’s or A- in
the case of S&P and, if such Lender has a long term credit rating assigned
to it by both S&P and Moody’s, then the lower of such ratings will apply;
or


 


(b)           in respect of any
transfer otherwise than in accordance with paragraph (a) above, a New Lender
acceptable to each Issuing Entity.


 


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, an Issuing Entity, the U.S. Dollar Swingline
Agent or the Facility Agent.


 


4

















 


Affected Lender means, at any
time:


 


(a)           a Lender in
respect of which the Obligors’ Agent is at that time entitled to serve a notice
under Clause 13.9 (Involuntary prepayment and cancellation), but has not done
so; or


 


(b)           a Lender who has
notified the Obligors’ Agent under Clause 13.1 (Mandatory prepayment -
illegality) that it has become unlawful for that Lender to perform its
obligations under a Finance Document or fund or maintain its share in any
Credit.


 


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


 


Agent means the
Facility Agent or the U.S. Dollar Swingline Agent.


 


Agent’s Spot Rate of Exchange
means the Facility Agent’s spot rate of exchange for the purchase of the
relevant currency in the London foreign exchange market with Euros at or about
11.00 a.m. on any particular Business Day.


 


Anticipated U.K. Duty Change Date
means a date identified in a Commitment Request as a date on which the Obligors’
Agent anticipates that a change in U.K. Tax on tobacco or tobacco related
products may occur.


 


Available Commitments
means, in relation to a Facility a Lender’s Commitment under that Facility on
the proposed Utilisation Date minus:


 


(a)           its participation
in any Loans under that Facility outstanding at such time; and


 


(b)           its participation
in any Avales under that Facility outstanding at such time,


 


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


 


For the purposes
of calculating a Lender’s Available Commitment in relation to any proposed utilisation
under a Revolving Credit Facility only, that Lender’s participation in any Loan
under that Revolving Credit Facility that is due to be repaid or prepaid on or
before the proposed Utilisation Date shall not be deducted from a Lender’s
Commitment under that Revolving Credit Facility.


 


Availability Period means:


 


(a)           in respect of the
A Term Loan Facility, B Term Loan Facility and C Term Loan Facility:


 


(i)            for the issue of
Avales in relation to the Offer, the period from and including the date of this
Agreement to and including the date falling 60 days after the date of this
Agreement, provided that no Avales shall be issued after the Aval Cash
Collateralisation Date;


 


(ii)           for the issue of
Avales in relation to the Delisting Offer, the period from and including the
Closing Date to and including the date falling 60 days after the Closing Date,
provided that no Avales shall be issued after the Aval Cash Collateralisation
Date; and


 


(iii)          for Term Loans,
the period from and including the Closing Date to and including the date
falling one year after the Closing Date;


 


5

















 


(b)           in respect of the
A Revolving Credit Facility and the B Revolving Credit Facility, the period
from and including the date of this Agreement to and including the date falling
one month prior to the third anniversary of the date of this Agreement;


 


(c)           in respect of the
C Revolving Credit Facility:


 


(i)            for the issue of
Avales in relation to the Offer, the period from and including the date of this
Agreement to and including the date falling 60 days after the date of this
Agreement, provided that no Avales shall be issued after the Aval Cash
Collateralisation Date;


 


(ii)           for the issue of
Avales in relation to the Delisting Offer, the period from and including the
Closing Date to and including the date falling 60 days after the Closing Date,
provided that no Avales shall be issued after the Aval Cash Collateralisation
Date; and


 


(iii)          for C Revolving
Credit Loans, the period from and including the date of this Agreement to and
including the date falling one month prior to the fifth anniversary of the date
of this Agreement;


 


(d)           in respect of the
Swingline Facility:


 


(i)            in relation to
any Swingline Lender on the date of this Agreement, the period from and
including the date of this Agreement to and including the date falling 364 days
after the date of this Agreement; and


 


(ii)           in relation to a
Swingline Lender after any exercise of the Swingline Facility Extension Option,
each Swingline Extension Period for which that Swingline Lender acquires a
Swingline Commitment; and


 


(e)           in respect of the
Uncommitted Facility, each period of two months commencing on the Anticipated
U.K. Duty Change Date identified in the Commitment Request in relation to which
a Lender acquires a Commitment.


 


Aval means each aval
issued by an Issuing Entity substantially in the form set out in Schedule 9
(Form of Avales) or with such changes as may be required by the CNMV provided
such changes do not (individually or in aggregate) materially and adversely
affect the interests of the Finance Parties or are otherwise approved by the
Issuing Entities in each case in connection with the Offer or Delisting Offer
and any substitute Aval issued in accordance with Clause 6.3 (Issue of Avales)
(together, the Avales).


 


Aval Cash Collateralisation Date means
the date falling 364 days after the date of this Agreement.


 


Aval Fee has
the meaning given to that term in Clause 29.4 (Fees in respect of Avales).


 


Aval Release Date means
the date on which an Aval is repaid or prepaid in full.


 


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.


 


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.


 


6

















 


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


 


(a)           if on that day a
payment in or a purchase of a currency (other than Euro) is to be made, the
principal financial centre of the country of that currency; or


 


(b)           if on that day a
payment in or a purchase of Euro is to be made, a day which is also a TARGET
Day.


 


Cat means Compañia de Distribucíón Integral Logista, S.A. and
its Subsidiaries.


 


Certain Funds  Credit means an Aval or a Loan to be applied to finance the
acquisition of any Tiger Shares or refinance the indebtedness of the Group
and/or the Tiger Group.


 


Certain Funds Period
means the period from (and including) the date of this Agreement to (and
including) the earlier of the Aval Cash Collateralisation Date and the date
falling 90 days after the Closing Date.


 


Circular means the Class
1 circular issued or to be issued by Imperial to its shareholders and the
working capital statements relating to it.


 


Claimed Amount has the meaning
given to that term in Clause 7.1 (Authority to pay claims under an Aval).


 


Clean-Up Period means
the period from the Closing Date to the date falling 90 days after the Closing
Date.


 


Closing Date means the date on
which the first payment in respect of the Tiger Shares is made under the Offer.


 


CNMV means
the National Securities Market Commission of Spain (Comisión Nacional del Mercado de Valores).


 


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


 


Commitment means a
Commitment as so designated, of a Lender under a particular Facility.


 


Commitment  Notice means an offer in respect of a Commitment in respect
of the Uncommitted Facility, substantially in the form of Part 4 of Schedule 3
(Form of Commitment Notice).


 


Commitment  Request means a request for a Commitment in respect of the
Uncommitted Facility, substantially in the form of Part 3 of Schedule 3 (Form
of Commitment Request).


 


Competition Analysis
means the table entitled “Project Vancouver – Competition Analysis”.


 


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.


 


Confidentiality Undertaking
means a confidentiality undertaking substantially in the form recommended by
the Loan Market Association as at the date of this Agreement or such other form
agreed between the Obligors’ Agent and the Facility Agent (acting reasonably).


 


7

















 


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
short-term credit rating of either A-1 (or higher) by S&P, A-1 (or higher)
by Fitch or P-1 by Moody’s, or, if no short-term 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 either A-1 (or higher) by
S&P, A-1 (or higher) by Fitch or P-1 by Moody’s or, if no short-term rating
is available in respect of that third party in respect of its long-term debt
obligations, an equivalent rating; 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 gains, losses or non-recurring
costs, charges or expenses arising on:


 


(i)            restructuring of
the activities of any part of the Group;


 


(ii)           disposal of
non-current assets;


 


(iii)          disposal of
assets associated with discontinued operations; and


 


(iv)          reversal of any
provision in relation to (i), (ii) and (iii) above,


 


which are charged
to the consolidated income statement of the Group; and


 


8

















 


(f)            before taking
into account any increase or decrease in the fair value of any financial
instrument charged to the consolidated income statement of the Group,


 


and, for the
purposes of Clause 25.2 (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 Equity Bridge Facility Agreement and (b) during the
period from and including the date of this Agreement to and including the
Closing Date, this Agreement.


 


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
(a) any monies borrowed or raised under the Equity Bridge Facility Agreement
and (b) the amount of any Aval outstanding.


 


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


 


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


 


Credit means a Loan or
an Aval.


 


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 26 (Default), would constitute an Event of Default.


 


Delisting Offer means the tender
offer to be made to all the shareholders of Tiger for the Tiger Shares by Tiger
or, if agreed by the CNMV, by the company making the Offer in accordance with
Article 7 of the Spanish Royal Decree 1197/1991 of 26 July on Public Tender
Offers (as amended) or any other legislation that may replace it.


 


Delisting Offer Document
means the prospectus (Folleto Explicativo)
registered with the CNMV in respect of the Delisting Offer and each annex to
that prospectus.


 


Dirham Facility Document
means each of:


 


(a)           the MAD3,000,000,000
senior facility agreement dated 11 July 2003 entered into by Tiger as
supplemented and amended from time to time;


 


(b)           the
MAD2,000,000,000 senior facility agreement dated 22 December 2003 entered into
by Tiger as supplemented and amended from time to time; and


 


9

















 


(c)           any agreements
and documents relating to the refinancing of such facilities provided that the
recourse to members of the Group is no greater than under the original finance
documents relating to such facilities and the principal amount of any such
refinancings is no greater in aggregate than the principal amount of those
facilities immediately prior to any such refinancing.


 


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.


 


Equity Bridge Facility Agreement
means the subordinated facility agreement dated on or about the date of this
Agreement between, amongst others, Imperial, ABN AMRO Bank N.V., London Branch,
Citibank, N.A., London Branch and Morgan Stanley Senior Funding, Inc. and the
documentation in respect of any refinancing of the amounts outstanding under
that agreement without breaching the terms of this Agreement.


 


EURIBOR means, for a
Term of any Loan or overdue amount in Euro:


 


(a)           the applicable
Screen Rate; or


 


(b)           if no Screen Rate
is available for that Term of that Loan or overdue amount, the arithmetic mean
(rounded upward to four decimal places) of the rates, as supplied to the
Facility Agent at its request, quoted by the Reference Banks to leading banks
in the European interbank market,


 


in each case, as
of 11.00 a.m. (Brussels time) on the Rate Fixing Day for the offering of
deposits in Euro, for a period comparable to that Term.


 


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


 


Euro  Amount of a Loan or part of a Loan means:


 


(a)           if the Loan is
denominated in Euros, its amount; or


 


(b)           in the case of
any other Loan denominated in an Optional Currency, its equivalent in Euros
calculated on the basis of the Agent’s Spot Rate of Exchange one Business Day before
the Rate Fixing Day for that Term or in the case of a Loan which refinances a
Swingline Loan the Utilisation Date for the relevant Swingline Loan.


 


Event of Default means an event
or circumstance specified as such in Clause 26 (Default).


 


Existing Facilities Agreement
means the Euro 3,750,000,000 and £500,000,000 credit facilities agreement dated
10 February 2005 between, amongst others, Imperial Finance, Imperial and HSBC
Bank PLC (as amended, restated or supplemented from time to time).


 


Extension Notice means a notice
given by the Obligors’ Agent for an extension of the Original A Term Loan
Maturity Date in accordance with Clause 5.4 (Extension of Original A Term Loan
Maturity Date).


 


Extension Option means the option
of the Obligors’ Agent to extend the Original A Term Loan Maturity Date in
accordance with Clause 5.4 (Extension of Original A Term Loan Maturity Date).


 


10

















 


Extension Period means
the period from the Original A Term Loan Maturity Date to the date falling 364
days after the Original A Term Loan Maturity Date.


 


Facility means a 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 giving 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 in respect
of:


 


(a)           the A Term Loan Facility, the Original A
Term Loan Maturity Date or, if extended
in accordance with this Agreement, the date falling 364 days after the Original
A Term Loan Maturity Date;


 


(b)           the B Term Loan Facility, the date falling three
years after the date of this Agreement;


 


(c)           the C Term Loan
Facility, the date falling five years after the date of this Agreement;


 


(d)           the A Revolving
Credit Facility and B Revolving Credit Facility, the date falling three years
after the date of this Agreement;


 


(e)           the C Revolving
Credit Facility, the date falling five years after the date of this Agreement;


 


(f)            the Swingline
Facility, subject to the Swingline Facility Extension Option, the date falling
364 days after the date of this Agreement; and


 


(g)           the Uncommitted
Facility, the date falling five years after the date of this Agreement.


 


Final Release Date means
the date on which the Aval Release Date has occurred in respect of each Aval.


 


Finance Document means:


 


(a)           this Agreement;


 


(b)           a Fee Letter;


 


(c)           a Transfer
Certificate;


 


(d)           the Syndication
Letter;


 


(e)           each Aval; or


 


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


 


Finance Party means a Lender
or an Administrative Party.


 


11

















 


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;


 


(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.


 


First Cash Utilisation Date
means the first Utilisation Date on which a Term Loan Facility or the C
Revolving Credit Facility is utilised other than by way of the issuance of an
Aval.


 


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 6 of Schedule 3 (Form of Guarantor
Accession Agreement), 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.


 


Hybrid Securities means any
issuance of an individual security by a member of the Group containing both a
debt and equity component and the equity
component of any Hybrid Securities will be the component credited as
equity by Moody’s or S&P (or an equivalent statistical rating agency).


 


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).


 


IBOR means LIBOR or EURIBOR.


 


12

















 


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.


 


Indemnified Party means:


 


(a)           each Issuing
Entity; and


 


(b)           each Lender.


 


Indemnity Claim has
the meaning given to that term in Clause 7.2 (Lenders’ Indemnity).


 


Indemnity Claim Notice means
a notice in respect of an Indemnity Claim served pursuant to Clause 7.5
(Settlement of Claims under Lenders’ Indemnity) and substantially in the form
of Schedule 8 (Form of Indemnity Claim Notice).


 


Information Memorandum
means the document regarding the Group described as such prepared in respect of
the Facilities in the form approved by Imperial.


 


ISP means the
International Standby Practices, 1998.


 


Issuer means Imperial
Tobacco Overseas B.V.


 


Issuing Entity means:


 


(a)           an Original
Issuing Entity; or


 


(b)           any
person which becomes an Issuing Entity after the date of this Agreement.


 


Issuing Entity Accession
Agreement means an agreement substantially
in the form of Schedule 3 Part 7 (Form of Notices) with such amendments as the
Facility Agent and the Obligors’ Agent may agree.


 


Lehman Issuing Entity
means Lehman Brothers Bankhaus AG, London Branch or, if acceptable to the CNMV
and so elected by Lehman Commercial Paper Inc., UK Branch, Lehman Commercial
Paper Inc., UK Branch.


 


Lender means:


 


(a)           an Original
Lender; or


 


(b)           any person which
becomes a Lender after the date of this Agreement, and unless the context
otherwise requires, references in this Agreement to a Lender include a
Swingline Lender.


 


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


 


13

















 


(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
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:


 


(a)           the report dated
on or about the date of this Agreement entitled Project Vancouver, Tiger
Litigation; and


 


(b)           the report dated
on or about the date of this Agreement entitled Project Vancouver –Litigation
Report.


 


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.


 


Major Breach means a breach
of:


 


(a)           Clause 23.10
(Negative pledge);


 


(b)           Clause 23.11
(Restrictions on Guarantees);


 


(c)           Clause 23.12
(Disposals); or


 


(d)           Clause 24.1
(Compliance in connection with the Offer) to Clause 24.6 (Equity Documents).


 


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


 


(a)           Clause 26.2
(Non-payment);


 


(b)           Clause 26.4
(Other breaches) but only in so far as it relates to a Major Breach;


 


(c)           Clause 26.5
(Misrepresentation) but only in so for as it relates to a Major Representation;


 


(d)           Clause 26.7
(Insolvency), Clause 26.8 (Winding up), Clause 26.9 (Creditors’ process) or
Clause 26.14 (Cessation of Business); or


 


(e)           Clause 26.12
(Unlawfulness) or Clause 26.13 (Repudiation).


 


Major Representation means
any of the following representations:


 


(a)           Clause 22.2
(Status);


 


(b)           Clause 22.3
(Powers and authority) but only if this would be reasonably likely to
materially and adversely affect the interests of the Finance Parties;


 


(c)           Clause 22.4
(Legal validity); or


 


(d)           Clause 22.5
(Non-conflict) (other than subparagraph (c) of that clause).


 


14
















 


Majority Lenders means, at any
time, Lenders:


 


(a)           whose share in
the outstanding Credits and whose Available Commitments (excluding any
Swingline Commitment) then aggregate 662/3 % or more of
the aggregate of all the outstanding Credits and the Available Commitments
(excluding any Swingline Commitment) of all the Lenders;


 


(b)           if there is no
Credits then outstanding, whose Available Commitments (excluding any Swingline
Commitment) then aggregate 662/3 % or more of the Total
Commitments (excluding any Swingline Commitment); or


 


(c)           if there is no
Credits then outstanding and the Total Commitments have been reduced to zero,
whose Commitments (excluding any Swingline Commitment) aggregated 662/3
% or more of the Total Commitments (excluding any Swingline Commitment)
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 the
percentage rate per annum determined in accordance with:


 


(a)           in respect of the
Term Loan Facilities, Revolving Credit Facilities and Swingline Facility,
Clause 14.3 (Margin); or


 


(b)           in respect of the
Uncommitted Facility, Clause 10.3 (Offer and Acceptance).


 


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; and


 


(b)           a Principal
Subsidiary.


 


Maturity Date means, for a
Revolving Credit Loan or a Swingline Loan, the last day of the Term for that
Loan.


 


Maximum Uncommitted Facility Amount
means £600,000,000.


 


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


 


Minimum
Bridge Utilisation means:


 


(a)           a part of the first €7,250,000,000 of the
facilities available under the Equity Bridge Facility Agreement (the Base Equity Minimum Amount) which is proportionate to the
amount to be utilised by way of Loan under this Agreement to fund the purchase
price of Tiger shares or refinance the outstanding indebtedness of the Tiger
Group; or


 


(b)           if the Obligors’ Agent has received from Moody’s or
S&P a formal indication of the minimum amount of the facilities required to
be drawn under the Equity Bridge Facility


 


15

















 


Agreement for Imperial to
maintain a long term credit rating of Baa3 in the case of Moody’s or BBB- in
the case of S&P (the Ratings  Equity Minimum Amount) which is higher than
the Base Equity Minimum Amount, that Ratings Equity Minimum Amount, provided
that the Minimum Bridge Utilisation shall be no greater than the amount of the
facilities available under the Equity Bridge Facility Agreement and if such
Ratings Equity Minimum Amounts received from both Moody’s and S&P are
different, the higher such Ratings Equity Minimum Amount will apply; or


 


(c)             if the Obligors’ Agent has received Ratings Equity
Minimum Amounts from both Moody’s and S&P which are lower than the Base
Equity Minimum Amount and which have been received by the Facility Agent from
the Obligors’ Agent in a form and substance satisfactory to the Facility Agent
(acting reasonably), the higher of such Ratings Equity Minimum Amounts.


 


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


 


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


 


Net Proceeds means in respect
of an issuance or disposal an amount equal to the cash proceeds received by any
member of the Group net of relevant fees, costs, expenses and Taxes incurred by
any member of the Group in relation to that issuance or disposal.


 


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


 


Non-Consenting Lender
means a Lender which does not agree to a consent or amendment to, or a waiver
of, a provision of a Finance Document requested by the Obligors’ Agent where:


 


(a)           the consent,
waiver or amendment requires the consent of all the Lenders;


 


(b)           a period of not
less than 20 Business Days has elapsed from the date the consent, waiver or
amendment was delivered to the Facility Agent; and


 


(c)           the consent,
waiver or amendment has been agreed to by a Super Majority.


 


Non-Funding Lender means a Lender
which has:


 


(a)           failed to advance
its share of a Credit it is obliged to make under this Agreement and the
Obligors’ Agent (acting reasonably) has determined that the Lender is not
likely to advance that amount; or


 


(b)           given notice to
the Obligors’ Agent and/or the Facility Agent that it will not advance, or that
it has disaffirmed or repudiated any obligation to advance, its share in any
Credit.


 


Obligor means a Borrower
or a Guarantor.


 


Obligors’ Agent means Imperial
Finance.


 


Offer
means the offer to the shareholders of Tiger for the Tiger Shares to be filed
by Imperial or a wholly owned subsidiary of Imperial (or on their behalf) with
the CNMV as that Offer is supplemented or amended from time to time.


 


16

















 


Offer 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 Offer or any
Delisting Offer.


 


Offer Document means
the prospectus (Folleto Explicativo)
registered with the CNMV in respect of the Offer and each annex or supplement
to that prospectus.


 


Optional Currency means any currency
(other than Euros) in which a Loan may be denominated under this Agreement.


 


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


 


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


 


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.


 


Permitted Bridge Payment means:


 


(a)           a payment or repayment of amounts outstanding under the Equity Bridge
Facility Agreement after the Net Proceeds of
the Rights Issue and/or the proceeds of any Redenomination Swap have been
applied in full in prepayment of principal amounts outstanding under the Equity
Bridge Facility Agreement to the extent such balance arises as a result of a
shortfall on the conversion of the Sterling amount of such Net Proceeds of the
Rights Issue into a Euro amount (at the rate of exchange applicable at the time
such Rights Issue Net Proceeds are applied in prepayment of the Equity Bridge
Facility Agreement and after taking into account any currency hedging
transactions entered into by any member of the Group in respect of such
conversion including any Redenomination Swap);


 


(b)           a payment or
repayment amounts outstanding under the Equity Bridge Facility Agreement to the
extent that Imperial has received confirmation from S&P and Moody’s in a
form and in substance satisfactory to the Facility Agent (acting reasonably)
that the long term credit rating assigned to the Group after the Rights Issue
(as reduced as a result of such payments) will be no lower than BBB- by S&P
or Baa3 by Moody’s; and


 


(c)           a payment
comprising interest, fees, costs and expenses associated with the facilities
under the Equity Bridge Facility Agreement.


 


Permitted Reorganisation means:


 


(a)           a reorganisation
involving the business, assets or shares of (or other interest in) a member of
the Group on a solvent basis (including any winding up, dissolution or
corporate reconstruction) where:


 


(i)            no Default is
outstanding or would result from the proposed reorganisation;


 


(ii)           all the assets of
that member remain within the Group or a part of those assets proportionate to
the relevant member of the Group’s equity interest in that member remain with
the Group; and


 


17

















 


(iii)          there is no
material and adverse impact on the financial position of the Guarantors arising
as a result of the Permitted Reorganisation; or


 


(b)           any other
reorganisation of one or more members of the Group approved by the Majority
Lenders.


 


Permitted Securitisation
means any securitisation programme operated by any members of the Tiger Group
in substantially the manner such programme was operated prior to the date of
the Offer.


 


Prescribed Time means the time
set out under the heading Time on the
earlier of the dates set out under the headings A
and B in each case opposite a reference for
a paragraph of Clause 10.1 (Commitment Requests) or Clause 10.3
(Offer and Acceptance) below where:


 


(a)           UD is
the proposed Utilisation Date of the proposed Loan; and


 


(b)           CR is
the date of the relevant Commitment Request,


 


in each case, if
applicable, plus or minus the number of Business Days specified:


 


	
  Clause

  	
   

  	
  Event

  	
   

  	
  Time

  	
   

  	
  A

  	
   

  	
  B

  
	
  10.1(d)

  	
   

  	
  Facility Agent notifies Lenders

  	
   

  	
  12.00

  	
  noon

  	
   

  	
  CR

  	
   

  	
  UD-10

  
	
  10.3(b)

  	
   

  	
  Facility Agent makes offer(s) to Imperial Finance

  	
   

  	
  2.00

  	
  p.m.

  	
   

  	
  CR+10

  	
   

  	
  UD-2

  
	
  10.3(a)

  	
   

  	
  Facility Agent receives offer(s) from Lenders

  	
   

  	
  3.00

  	
  p.m.

  	
   

  	
  CR+10

  	
   

  	
  UD-2

  
	
  10.3(e)

  	
   

  	
  Facility Agent notifies Imperial Finance

  	
   

  	
  5.00

  	
  p.m.

  	
   

  	
  CR+10

  	
   

  	
  UD-2

  
	
  10.3(f)

  	
   

  	
  Imperial Finance accepts offer(s)

  	
   

  	
  10.00

  	
  a.m.

  	
   

  	
  CR+20

  	
   

  	
  UD-1

  
	
  10.3(i)

  	
   

  	
  Facility Agent notifies Lenders of results

  	
   

  	
  1.00

  	
  p.m.

  	
   

  	
  CR+20

  	
   

  	
  UD-1

  



 


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


 


(B)           the consolidated pre-tax
profit (the pre-acquisition profit) of any
Subsidiary which became a member of the Group during the period for


 


18

















 


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 a Facility, the proportion
which its Available Commitment (excluding any Swingline Commitment) under that
Facility bears to all the Available Commitments (excluding any Swingline
Commitment) under that Facility; and


 


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


 


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


 


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


 


(iii)          if the Total
Commitments (excluding any Swingline Commitment) have been cancelled, the
proportion which its Commitments (excluding any Swingline Commitment) bore to
the Total Commitments (excluding any Swingline Commitment) immediately before
being cancelled; or


 


(iv)          when the term is
used in relation to a Facility, the above proportions but applied only to the
Credits and Commitments (excluding any Swingline Commitment) for that Facility,


 


19

















 


and for the
purpose of paragraph (iv) above, the Facility Agent will, in the case of a
dispute, determine whether the term in any case relates to a particular
Facility.


 


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


 


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


 


Rate Fixing Day means:


 


(a)           the first day of
a Term for a Loan denominated in Sterling;


 


(b)           the second
Business Day before the first day of a Term for a Loan denominated in any other
currency (other than Euro); or


 


(c)           the second TARGET
Day before the first day of a Term for a Loan denominated in Euro,


 


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.


 


Redenomination Swap means any
transaction entered into by Imperial Finance and a bank or financial
institution in connection with the conversion of the Rights Issue proceeds into
Euro for the purposes of repayment or prepayment of the facility outstanding
under the Equity Bridge Facility Agreement or the redenomination of that
facility into Sterling (in whole or in part) in order to facilitate the
repayment of that facility using the proceeds of any Rights Issue.


 


Reference  Bank means each of the Facility Agent, Citibank, N.A.,
London Branch and Barclays Bank PLC and any other bank or financial institution
appointed as such by the Facility Agent in accordance with the terms of this
Agreement.


 


Related Issuing Entity
means:


 


(a)           in respect of Banco Santander Central Hispano S.A.,
London branch, Banco Santander Central Hispano S.A.;


 


(b)           in respect of
Barclays Bank PLC, Barclays Bank PLC;


 


(c)           in respect of
Citibank, N.A., London Branch, Citibank International plc, Sucursal en España;


 


(d)           in respect of
Lehman Brothers Holdings, Inc. and Lehman Loan Funding, LLC, the Lehman Issuing
Entity; and


 


(e)           in respect of The
Royal Bank of Scotland plc, The Royal Bank of Scotland plc.


 


Relevant Lender means:


 


(a)           an Affected
Lender;


 


20

















 


(b)           a Non-Consenting
Lender; or


 


(c)           a Non-Funding
Lender.


 


Relevant Obligations
means:


 


(a)           in respect of each
Issuing Entity, all of its obligations and liabilities (whether actual or
contingent) under the Aval issued by it; and


 


(b)           in respect of
each Lender, all of its obligations and liabilities (whether actual or
contingent) under Clause 7.2 (Lenders’ Indemnity).


 


Repeating Representations
means the representations which are deemed to be repeated under Clause 22.15
(Times for making Representations).


 


Replacement Lender means a Lender
or any other person selected by the Obligors’ Agent which is:


 


(a)            willing to assume
all of the obligations of the Relevant Lender;


 


(b)            if such
assumption will occur prior to the Final Release Date, an Acceptable Transferee
or any other person acceptable to the Issuing Entities (acting reasonably); and


 


(c)            satisfactory to
the Facility Agent (acting reasonably) from a know your customer perspective.


 


Request means a request
for a Credit, substantially in the form of Part 1 of Schedule 3 (Form of
Request).


 


Requested Amount has the meaning
given to that term in Clause 10.2 (Completion of Commitment Requests).


 


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).


 


Revolving Credit Commitment
means:


 


(a)           for an Original
Lender, the amount set out opposite its name in Part 2 of Schedule 1 (Original
Lenders) under the heading Revolving Credit Commitments and designated A, B or C and the amount of any other Revolving Credit Commitment,
as so designated, it acquires; and


 


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


 


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


 


21

















 


Revolving Credit Facility
means a revolving credit facility made available under this Agreement and when
designated A, B
or C means the relevant Revolving Credit
Facility as so designated.


 


Revolving Credit Loan
means a Loan under a Revolving Credit Facility made available under this
Agreement and when designated A, B or C means the
relevant Revolving Credit Loan as so designated.


 


Rights Issue means the rights
issue outlined in the Underwriting Agreement.


 


Rollover Loan means one or
more Loans under a Revolving Credit Facility:


 


(a)           to be made on the
same day that a maturing Loan is due to be repaid;


 


(b)           the aggregate
amount of which is equal to or less than the maturing Loan;


 


(c)           in the same
currency as the maturing Loan; and


 


(d)           to be made for
the purpose of:


 


(i)            refinancing a
maturing Revolving Credit Loan; or


 


(ii)           refinancing a
maturing Swingline Loan.


 


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


 


Screen Rate means:


 


(a)           for LIBOR, the
British Bankers Association Interest Settlement Rate (if any); and


 


(b)           for EURIBOR, the
percentage rate per annum determined by the Banking Federation of the European
Union,


 


for the relevant
currency and 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.


 


Spain means the Kingdom
of Spain and its constituent parts and Spanish shall
be construed accordingly.


 


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


 


Syndication Date means the date
on which close of primary syndication of the Facilities occurs in accordance
with the terms of the Syndication Letter.


 


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


 


Super Majority means, at any
time, Lenders:


 


22

















 


(a)           whose share in
the outstanding Credits and whose Available Commitments (excluding any
Swingline Commitment) then aggregate 85% or more of the aggregate of all of the
outstanding Credits and the Available Commitments (excluding any Swingline
Commitment) of all the Lenders;


 


(b)           if there is no
Credit then outstanding, whose Available Commitment (excluding any Swingline
Commitment) then aggregate 85% or more of the Total Commitments (excluding any
Swingline Commitment); or


 


(c)           if there is no
Credit then outstanding and the Total Commitments have been reduced to zero,
whose Commitments (excluding any Swingline Commitment) aggregated 85% or more
of the Total Commitments (excluding any Swingline Commitments) immediately
before that reduction.


 


Swingline Commitment
means:


 


(a)           in the case of a
Swingline Lender on the date of this Agreement, the amount in Euro set opposite
its name in Part 2of Schedule 1 (Original Lenders) under the heading “Swingline
Commitments” and the amount of any other Swingline Commitment it acquires; or


 


(b)           for any other
Swingline Lender, the amount of any Swingline Commitment it acquires,


 


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


 


Swingline
Extension Notice means a request made by
Imperial Finance to exercise a Swingline Facility Extension Option,
substantially in the form of Part 2 of Schedule 3 (Form of Swingline Extension
Notice).


 


Swingline
Extension Period has the meaning given to
that term in Clause 8.4 (Swingline Facility Extension Option).


 


Swingline Facility means the
swingline facility made available under this Agreement.


 


Swingline Facility Extension Option
means the option of Imperial Finance to request the Lenders to provide the
Swingline Facility for certain periods after the Conversion Date in accordance
with Clause 8.4 (Swingline Facility Extension Option).


 


Swingline Lender means:


 


(a)           the financial
institutions listed in Part 2 of Schedule 1 (Original Lenders) as a Swingline
Lender; or


 


(b)           any other person
that becomes a Swingline Lender after the date of this Agreement.


 


Swingline Loan means a Loan
under the Swingline Facility made available under this Agreement.


 


Swingline Proceeds Account means
such accounts in the name of Imperial Finance as notified in writing to the
Facility Agent pursuant to the current dealing mandate as issued by Imperial
Finance to the Facility Agent or such other account in the name of Imperial
Finance as Imperial Finance may notify in writing to the Facility Agent for
this purpose by not less than five Business Day’s prior notice.


 


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


 


23

















 


TARGET  Day means a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer payment system is open for the
settlement of payments in Euro.


 


Tax means any tax,
levy, impost, duty or other charge or withholding of a similar nature
(including any 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 by reference to which interest on a Loan
or an overdue amount is calculated.


 


Term Loan means a Loan
under a Term Loan Facility made available under this Agreement and when
designated A, B
or C means the relevant Term Loan as so
designated.


 


Term Loan Facility means a term loan
facility made available under this Agreement and when designated A, B or C means the relevant Term Loan Facility as so designated.


 


Term Loan Commitment means:


 


(a)           in respect of an
Original Lender, the amount set opposite its name in Part 2 of Schedule 1
(Original Lenders) under the heading Term Loan Commitments and designated A, B or C and the amount of any other Term Loan Commitment, as so
designated, it acquires; and


 


(b)           in respect of any
other Lender, the amount of any Term Loan Commitment, as so designated, it
acquires,


 


and, for the avoidance of doubt, any such Commitment
will, unless otherwise drawn, be reinstated on the repayment of any relevant
Aval to the extent not cancelled, transferred or reduced under this Agreement.


 


Tiger means Altadis, S.A.


 


Tiger Bond Documents
means:


 


(a)           the agreements and documents
governing the terms of the following bond issues:


 


24

















 


	
  Amount (€)

  	
   

  	
  Maturity Date

  	
   

  	
  Issuer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  600,000,000

  	
   

  	
  2 October 2008

  	
   

  	
  Altadis Finance B.V.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  500,000,000

  	
   

  	
  2 October 2013

  	
   

  	
  Altadis Finance B.V.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  500,000,000

  	
   

  	
  11 December 2015

  	
   

  	
  Altadis Emisiones Financieras, S.A.U.

  



 


(b)          any agreements
and documents relating to the refinancing of such bond issues set out at
paragraph (a) above provided that the recourse to members of the Group is no
greater than under the original Tiger Bond Documents relating to such bond
issues and the principal amount of such refinancing is no greater than the
principal amount of such bond issues,


 


provided that notwithstanding the foregoing Imperial
and/or Imperial Tobacco Limited may provide guarantees to the bondholders under
any Tiger Bond Documents and the Tiger Bond Documents will include any
documentation in relation to such guarantees.


 


Tiger Group means Tiger and
its Subsidiaries for the time being.


 


Tiger Shares means shares in
the issued share capital of Tiger.


 


Total A Revolving Credit Commitments
means the aggregate of the A Revolving Credit Commitments of all the Lenders,
being the total amount identified as such in Part 2 of Schedule 1 (Original
Lenders) at the date of this Agreement.


 


Total A Term Loan Commitments means
the aggregate of the A Term Loan Commitments of all the Lenders, being the
total amount identified as such in Part 2 of Schedule 1 (Original Lenders) at
the date of this Agreement.


 


Total B Revolving Credit Commitments
means the aggregate of the B Revolving Credit Commitments of all the Lenders,
being the total amount identified as such in Part 2 of Schedule 1 (Original
Lenders) at the date of this Agreement.


 


Total B Term Loan Commitments means
the aggregate of the B Term Loan Commitments of all the Lenders, being the
total amount identified as such in Part 2 of Schedule 1 (Original Lenders) at
the date of this Agreement.


 


Total Commitments means the
aggregate of the Commitments of all the Lenders.


 


Total C Revolving Credit Commitments
means the aggregate of the C Revolving Credit Commitments of all the Lenders,
being the total amount identified as such in Part 2 of Schedule 1 (Original
Lenders) at the date of this Agreement.


 


Total C Term Loan Commitments
means the aggregate of the C Term Loan Commitments of all the Lenders, being
the total amount identified as such in Part 2 of Schedule 1 (Original Lenders)
at the date of this Agreement.


 


Total Swingline Commitments
means the aggregate of the Swingline Commitments of all the Swingline Lenders,
being the total amount identified as such in Part 2 of Schedule 1 (Original
Lenders) at the date of this Agreement.


 


25

















 


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:


 


(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 879 of the Income Tax Act 2007 (as
currently defined in section 991 of the Income Tax Act 2007) 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
resident in the U.K. which carries on a trade in the U.K. through a permanent
establishment and is required to bring into account payments made to it in
computing its chargeable profits for the purposes of section 11(2) of the
Income and Corporation Taxes Act 1988,


 


and which has
given (and not revoked) a Tax Confirmation to the Obligors’ Agent and the
Facility Agent.


 


Uncommitted Facility
means an uncommitted facility made available under this Agreement.


 


Underwriting Agreement means
each of:


 


(a)          the back-stop
sponsor’s and underwriting agreement (the Back-Stop Underwriting
Agreement) in the agreed form dated on or about the date of this
Agreement between Imperial, Hoare Govett Limited, Morgan Stanley & Co.
International plc, Citigroup Global


 


26

















 


Markets Limited, Citigroup Global Markets U.K.
Equity Limited and Lehman Brothers International (Europe) or any replacement of
that underwriting agreement entered into by Imperial as supplemented and
amended from time to time without breaching this Agreement; and


 


(b)          any underwriting
agreement entered into by Imperial after the date of this Agreement pursuant to
the Back-Stop Underwriting Agreement on closer to market terms or any
replacement of any such underwriting agreement.


 


United  States means the United States of America.


 


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


 


U.S. Facilities Agreement
means the US$1,900,000,000 facilities agreement dated 8 February 2007 between,
amongst others, Imperial Finance, Imperial, Citibank, N.A., London Branch and
The Royal Bank of Scotland plc (as amended, restated or supplemented from time
to time).


 


Utilisation  Date means each date on which a 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;


 


(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 long term credit
rating of Imperial is a reference to
the solicited long term credit rating of Imperial where the rating is based
primarily on the unsecured credit risk of Imperial;


 


(viii)        a Lender’s participation in an Aval shall be construed as a reference
to the relevant amount that is or may be payable by such Lender in relation to
that Aval which may become payable under Clause 7.2 (Lenders’ Indemnity);


 


(ix)           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;


 


(x)            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


 


27

















 


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;


 


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


 


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


 


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


 


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


 


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


 


(xvi)        a Finance
Document or another document is a reference to that Finance Document or other
document as amended (including, without limitation, any amendment providing for
any increase in the amount of a facility or an additional facility); and


 


(xvii)       a time of day is
a reference to London time (unless otherwise stated);


 


(xviii)      a reference to Barclays Capital is a reference to Barclays Capital, the
investment banking division of Barclays Bank PLC.


 


(b)           The equivalent in
Euros of a Revolving Credit Loan, Swingline Loan or part of such a Loan in an
Optional Currency for the purposes of calculating:


 


(i)            whether any limit
under this Agreement has been exceeded;


 


(ii)           the amount of a
Loan;


 


(iii)          the share of a
Lender in a Loan;


 


(iv)          the amount of any
repayment of a Loan; or


 


(v)           the undrawn
amount of a Lender’s Commitment,


 


is its Euro Amount.


 


(c)           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 as appropriate, 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.


 


28

















 


(d)           (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


 


(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.


 


(e)           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.


 


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


 


(g)           References to a
Commitment of Morgan Stanley Bank International Limited/Morgan Stanley Senior
Funding, Inc. (together the Morgan Stanley Entities)
in relation to a Facility shall be construed as a reference to the aggregate
Commitment of Morgan Stanley Bank International Limited and Morgan Stanley
Senior Funding, Inc. in relation to that Facility (as allocated between the
Morgan Stanley Entities in such proportions and such amounts as each Morgan
Stanley Entity notifies to the Facility Agent from time to time).


 


1.3          Avales


 


(a)           An Aval is repaid or prepaid if:


 


(i)            a Borrower
provides cash cover for that Aval; or


 


(ii)           the maximum
amount payable under that Aval is paid or reduced in accordance with its terms;
or


 


(iii)          that Aval is
returned to the relevant Issuing Entity; or


 


(iv)          the relevant
Issuing Entity is satisfied that it has no further liability under that Aval,


 


provided that,
for the avoidance of doubt, a substitution of an Aval for the purposes referred
to in Clause 6.3 (Issue of Avales) will not constitute a repayment or
prepayment of that Aval for the purposes of this Agreement save to the extent
of any reduction in the amount of that Aval occurring as a result of that
substitution.


 


The amount by
which an Aval is repaid or prepaid under subparagraphs (i) and (ii) above is
the amount of the relevant cash cover, payment or reduction.


 


(b)           The outstanding or principal
amount of an Aval at any time is the maximum amount that is or may be payable
by a Borrower in respect of that Aval at that time.


 


29

















 


(c)           Cash cover is
provided for an Aval if a Borrower (i) funds and maintains a cash deposit in
the currency of the Aval with the CNMV in place of or in consideration of a
reduction in the amount of that Aval (provided the Issuing Entities have
received evidence in form and substance satisfactory to them (acting
reasonably) that the Aval has been reduced by such amount) or (ii) pays an
amount in the currency of the Aval to an interest-bearing account(s) in the
name of that Borrower and the following conditions are met:


 


(i)            subject as set
out below, the account(s) is with the relevant Issuing Entity in such branch as
it may specify (acting reasonably) if the cash cover is to be provided for a
particular Issuing Entity or the Facility Agent if cash cover is to be provided
to all Issuing Entities;


 


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


 


(A)          to pay to the
relevant holder of the cash collateral amounts due and payable to the Finance
Parties for whom that cash collateral is held under that Aval; and


 


(B)           if no Default is
outstanding, by the relevant Borrower, to the extent that the balance in the
account exceeds the outstanding amount of that Aval;


 


(iii)          if requested by
the Facility Agent or any Issuing Bank (acting reasonably) the Borrower has
executed and delivered a security document over that account, in a form and
substance satisfactory to the Facility Agent and the relevant Issuing Entities
(in respect of cash cover for all Issuing Entities) or the relevant Issuing
Entity (in respect of cash cover for a particular Issuing Entity) (in either
case acting reasonably) for which the cash cover is provided, creating a first
ranking security interest over that account in favour of the relevant Issuing
Entity.


 


(d)           References to
cash cover exclude any interest accrued on that cash cover.


 


(e)           Any amount
standing to the credit of an account(s) maintained by a Borrower under
paragraph (c) above will bear interest at not less than a normal market
rate for deposits of a similar duration, currency and amount.


 


(f)            At any time
whilst the Borrower is providing cash cover to an Issuing Entity in respect of
an Aval, the Finance Parties if requested by the Borrower will co-operate (to
the extent reasonable) in effecting any arrangement to procure that the CNMV
accepts a cash deposit by the Borrower in place of or in consideration of a
reduction in the amount of that Aval (such reduction to be evidenced to the
satisfaction of the Issuing Entities (acting reasonably)).


 


(g)           At
any time prior to the Aval Release Date a Borrower will to the extent that
there are at that time any Avales outstanding hold any amount of any repayment
of a deposit by the CNMV on trust for payment to the relevant Issuing Entities
and issuing entities under the Equity Bridge Facility Agreement (together the Relevant Issuing Entities) 
in proportion to the outstanding amounts of the Avales issued by it and
the relevant Borrower will promptly pay those amounts to the Relevant Issuing
Entities to be held by way of cash cover in proportion to the amount of all
Avales issued under the Facilities and all avales issued under the Equity
Bridge Facility Agreement.


 


2.             FACILITIES


 


2.1          Term
Loan Facilities


 


Subject to the
terms of this Agreement, the Lenders make available to the Borrowers:


 


30
















 


(a)           a committed Euro term loan
facility with an Extension Option in an aggregate amount equal to the Total A
Term Loan Commitments;


 


(b)           a committed Euro term loan
facility in an aggregate amount equal to the Total B Term Loan Commitments; and


 


(c)           a committed Euro term loan
facility in an aggregate amount equal to the Total C Term Loan Commitments.


 


2.2          Avales


 


Subject to the
terms of this Agreement, the A Term Loan Facility, B Term Loan Facility, C Term
Loan Facility and C Revolving Credit Facility may also be utilised by way of
the issuance by the Issuing Entities of Avales in connection with the Offer or
any Delisting Offer.


 


2.3          Revolving
Credit Facilities


 


Subject to the
terms of this Agreement, the Lenders make available to the Borrowers:


 


(a)           a committed U.S. Dollar
revolving credit facility in an aggregate amount equal to the Total A Revolving
Credit Facility Commitments;


 


(b)           a committed Sterling
revolving credit facility in an aggregate amount equal to the Total B Revolving
Credit Facility Commitments; and


 


(c)           a committed multicurrency
revolving credit facility in an aggregate amount equal to the Total C Revolving
Credit Facility Commitments.


 


2.4          Swingline
Facility


 


Subject to the
terms of this Agreement, the Swingline Lenders make available to Imperial
Finance a committed swingline facility with a Swingline Facility Extension
Option in an aggregate amount equal to the Total Swingline Commitments.


 


2.5          Uncommitted
Facility


 


Subject to the
terms of this Agreement, the Lenders make available to Imperial Finance an
uncommitted facility in an aggregate amount not exceeding the Maximum
Uncommitted Facility Amount.


 


2.6          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
other than an obligation of an Obligor to that Finance Party under the Finance
Documents;


 


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


 


31

















 


(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.


 


3.             PURPOSE


 


3.1          Loan
proceeds


 


Each Loan may
only be used in or towards:


 


(a)           in the case of a Loan under
the A Term Loan Facility, B Term Loan Facility, C Term Loan Facility and C
Revolving Credit Facility:


 


(i)            financing the acquisition of
the Tiger Shares pursuant to the Offer for the Tiger Shares and the Delisting
Offer or (after the First Cash Utilisation Date) otherwise;


 


(ii)           refinancing outstanding
indebtedness of the Group and the Tiger Group;


 


(iii)          payment of the Offer Costs
and the payment of other fees, costs and expenses associated with the
Facilities;


 


(iv)          providing cash cover for the
Avales on the Aval Cash Collateralisation Date; and


 


(v)           after the Closing Date, to
fund amounts due to shareholders in Tiger (other than members of the Group)
pursuant to any dividend or other capital distribution or reduction, share
redemption or buy back or compensation payment in connection with their
shareholding in Tiger and/or any dilution of that shareholding;


 


(b)           in the case of a Loan under
a Revolving Credit Facility:


 


(i)            for ongoing working capital
requirements and general corporate purposes of the Group including, without
limitation, further acquisitions and to make Permitted Bridge Payments; or


 


(ii)           refinancing outstanding
indebtedness of the Group including the Tiger Group and the U.S. Target Group;
and


 


(iii)          payment of fees, costs,
expenses, stamp, registration or transfer taxes associated with the Facilities;


 


(c)           in the case of a Loan under
the Swingline Facility, the financing of any same-day financing requirements
which for this purpose means the provision of a facility or other financing
arrangements on the same day as such facility or other financing arrangement is
requested by Imperial Finance; and


 


(d)           in the case of a Loan under
the Uncommitted Facility, financing the payment of any customs duties, excise
duties and value added tax of any member of the Group,


 


32

















 


provided that until the Closing Date, no Loan may be used to fund the
purchase price for Tiger Shares (other than pursuant to the Offer) or refinance
outstanding indebtedness of the Tiger Group.


 


3.2          Avales


 


Each Aval may
only be used to support the obligations of Imperial or one of its wholly owned
subsidiaries or Tiger in respect of the Offer and/or any Delisting Offer in
accordance with the requirements of the CNMV pursuant to Spanish Royal Decree
1197/1991 (dated 26 July 1991) on Public Tender Offers (as amended), as
replaced or substituted by any other applicable regulation on tender offers.


 


3.3          No
obligation to monitor


 


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


 


4.             CONDITIONS PRECEDENT AND CERTAIN
FUNDS


 


4.1          Conditions
precedent documents


 


A Loan may not be
utilised or an Aval issued 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.


 


4.2          Further
conditions precedent to utilisation by way of Avales


 


The obligations of each Issuing Entity to issue an
Aval are subject to the further conditions precedent that on both the date of
the Request and the Utilisation Date for that Aval:


 


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


 


(b)           no Default is outstanding or
would result from the issuance of that Aval.


 


4.3          Conditions
precedent on the First Cash Utilisation Date


 


The obligations
of each Lender to participate in any Loan to be made on the Closing Date and
used to fund the purchase price for Tiger Shares or refinance outstanding
indebtedness of the Tiger Group are subject to the further conditions precedent
that:


 


(a)           at least the Minimum Bridge
Utilisation has been or will be utilised by way of Loan on the same date as the
Utilisation Date for that Loan;


 


(b)           all amounts outstanding
under the Existing Facilities Agreement and the U.S. Facilities Agreement have
been or will be repaid, prepaid and cancelled in full on or prior to the First
Cash Utilisation Date; and


 


(c)           to the extent such documents
and evidence are not required to be delivered pursuant to Clause 4.1 above 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 2 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.


 


33

















 


4.4          Further
conditions precedent to utilisation by way of Loans


 


(a)           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:


 


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


 


(ii)           no Default is
outstanding or would result from the Loan (or, in the case of Rollover Loans
(including the drawdown of Loans under the Revolving Credit Facilities to repay
Loans under the Swingline Facility), no actual Event of Default is outstanding
or would result from that Rollover Loan).


 


(b)           The conditions
precedent set out at paragraph (a) above will not apply to any utilisation by
way of a Loan to fund the repayment or prepayment of the Avales on the Aval
Cash Collateralisation Date or any utilisation by way of Loans for the purposes
set out in Clause 3.1(a)(iv) (Loan proceeds).


 


4.5          Limitations


 


Unless the
Facility Agent agrees pursuant to Clause 15.5 (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)           12 A Term Loans;


 


(b)           12 B Term Loans;


 


(c)           5 C Term Loans;


 


(d)           12 A Revolving Credit Loans;


 


(e)           6 B Revolving Credit Loans;


 


(f)            30 C Revolving Credit Loans;
and


 


(g)           15 Avales,


 


outstanding.


 


4.6          Certain
Funds


 


(a)           Notwithstanding
any term of this Agreement, during the Certain Funds Period no Lender is
entitled to:


 


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


 


(ii)           cancel its
Commitment to the extent to do so would prevent or limit the making of a
Certain Funds Credit;


 


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


 


(iv)          accelerate or
cause repayment of any Certain Funds Credit,


 


except as
provided in paragraph (b) below.


 


34

















 


(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 4.1 (Conditions precedent documents) 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
Certain Funds Credit is made;


 


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


 


(iv)          it is unlawful
for the Lender to maintain its Commitment or to perform its obligations to make
available that Certain Funds Credit.


 


Immediately upon
the expiry of the Certain Funds Period all such rights, remedies and
entitlements shall be available to the Lenders notwithstanding that they may
not have been used or have been available for use during the Certain Funds
Period.


 


5.             UTILISATION – TERM LOAN FACILITY AND
REVOLVING CREDIT FACILITY


 


5.1          Giving
of Requests


 


(a)           A Borrower may
borrow a Loan under the Term Loan Facility or the Revolving Credit Facility 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 for a Loan under the Term Loan Facility or
Revolving Credit Facility is 11.00 a.m. one Business Day before the Rate Fixing
Day for the proposed borrowing.


 


(c)           Each such Request
is irrevocable.


 


(d)           No Request may be
submitted in respect of the C Revolving Credit Facility for the purposes of the
acquisition of the Tiger Shares unless at the time of that Request, the A Term
Loan Facility, B Term Loan Facility and C Term Loan Facility have been utilised
in full or the Availability Period for those Facilities has expired.


 


(e)           Notwithstanding
the issue of Avales under the A Term Loan Facility, B Term Loan Facility and C
Term Loan Facility:


 


(i)            a Borrower may
deliver a Request in respect of the A Term Loan Facility, B Term Loan Facility
and C Term Loan Facility to fund the cash consideration payable for the Tiger
Shares supported by that Aval upon that cash consideration becoming due
pursuant to the Offer or a Delisting Offer and to fund any cash cover for the
Avales on the Aval Cash Collateralisation Date; and


 


(ii)           on repayment of
any relevant Aval, the Term Loan Commitments and C Revolving Commitments will
be reinstated to the extent not otherwise drawn, cancelled or reduced under
this Agreement.


 


5.2          Completion
of Requests


 


A Request for a
Loan under the Term Loan Facility or Revolving Credit Facility will not be
regarded as having been duly completed unless:


 


35

















 


(a)           it identifies the Borrower;


 


(b)           it identifies that the Loan
is a Term Loan or Revolving Credit Loan (as applicable);


 


(c)           it identifies the Facility
and, where relevant, any further designation of that Facility;


 


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


 


(e)           the amount of the Loan
requested is:


 


(i)            a minimum of Euro 5,000,000
or its equivalent in accordance with Clause 11 (Currencies) and an
integral multiple of 1,000,000 units of that currency;


 


(ii)           the maximum undrawn amount
available for Loans under the relevant Facility on the proposed Utilisation
Date less in the case of a Loan under the C Revolving Credit Facility the
amount of any outstanding Swingline Loan to be refinanced out of the C
Revolving Credit Facility to the extent that the Request does not specify that
the proceeds of the Loan under the C Revolving Credit Facility are to be
applied in repayment of that Swingline Loan; or


 


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


 


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


 


(g)           the payment instructions
comply with Clause 20.1 (Place of Payments).


 


5.3          Advance
of Loan


 


(a)           The Facility
Agent must promptly notify each Lender of the details of the requested Loan
under the Term Loan Facility or Revolving Credit Facility (as appropriate) and
the amount of its share in that Loan.


 


(b)           The amount of
each Lender’s share of a Loan under the Term Loan Facility or Revolving Credit
Facility (as appropriate) will be its Pro rata Share of such Loan on the
proposed Utilisation Date.


 


(c)           Subject to Clause
5.1(e) no Lender is obliged to participate in a Loan under the Term Loan
Facility or Revolving Credit Facility if as a result:


 


(i)            its share in the
Loans and its participation in Avales under that Facility would exceed its
Available Commitment for that Facility; or


 


(ii)           the aggregate
amount of all Credits (other than in the case of a Loan under the C Revolving
Credit Facility and the Loans to be applied in or towards discharging a Swingline
Loan) 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.


 


5.4          Extension
of Original A Term Loan Maturity Date


 


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


 


36

















 


(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 providing the A Term Loan Facility.


 


(c)           Following the
delivery of an Extension Notice if on the Original A Term Loan Maturity Date:


 


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


 


(ii)           there is no Default
outstanding,


 


the Original A
Term Loan Maturity Date will be extended to the date falling 364 days after the
Original A Term Loan Maturity Date.


 


6.             UTILISATION — AVALES


 


6.1          Giving
of Requests


 


(a)           The Obligors’
Agent may request an Aval or Avales be issued by giving to the Facility Agent a
duly completed Request.


 


(b)           Unless the
Facility Agent and the Issuing Entity otherwise agree, the latest time for
receipt by the Facility Agent of a duly completed Request for Avales is 11.00
a.m. three Business Days before the proposed Utilisation Date or, in the case
of Avales to be issued on the date of this Agreement, on the Utilisation Date.


 


(c)           Each such Request
is irrevocable.


 


6.2          Completion
of Requests


 


(a)           A Request for
Avales will not be regarded as having been duly completed unless:


 


(i)            it identifies the
Borrower;


 


(ii)           it specifies the
Facility under which the Avales are to be issued;


 


(iii)          it specifies that
it is for Avales;


 


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


 


(v)           the aggregate
amount of the Avales requested (together with the aggregate amount of any other
Avales previously issued under this Agreement, to the extent that such
previously issued Avales are not being substituted by the Avales requested):


 


(A)          is (I) equal to
or less than the Available Commitment under each Term Loan Facility and the C
Revolving Credit Facility on the proposed Utilisation Date and (II) equal to
the amount of the cash consideration payable for the Tiger Shares proposed to
be acquired pursuant to the Offer or, if applicable, the Delisting Offer; or


 


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


 


(vi)          the proposed
beneficiary is the CNMV for the benefit of shareholders of Tiger;


 


(vii)         the form of
Avales are attached; and


 


(viii)        the delivery
instructions for the Avales are specified.


 


37

















 


(b)           A Request may
include a request for an Aval to be issued in substitution for an existing Aval
in the manner contemplated in Clause 6.3 (Issue of Aval) below.


 


6.3          Issue
of Avales


 


(a)           The Facility
Agent must promptly notify each Issuing Entity and each Lender of the details
of the requested Avales and the amount of its share of those Avales.


 


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


 


(c)           Each of the
Issuing Entities will subject to any substitution in accordance with Clause
33.11 (New Issuing Entities) issue Avales in an amount equal to the percentage of the aggregate
amount of Avales specified in the Request set out opposite its name in Schedule 1 Part 3 (Issuing Entities) for the relevant
Facility.


 


(d)           If the relevant
conditions set out in this Agreement have been met, the Issuing Entities must
issue the Avales on the Utilisation Date.


 


(e)           An Aval may be
issued under this Agreement as a substitute for an existing Aval for the
purposes of amending the amount of that existing Aval or making administrative
or technical changes to its terms. The definition of Aval under this Agreement
shall be construed to include such substitute Aval.


 


(f)            Imperial shall
file the Avales or procure the Avales are filed with the CNMV promptly upon
issue.


 


(g)           The Issuing
Entities are not obliged to issue any Aval if as a result:


 


(i)            a Lender’s share
in a Term Loan under a Term Loan Facility and its participation in Avales under
a Term Loan Facility would exceed its Term Loan Commitment or a Lender’s share
in a Loan under the C Revolving Credit Facility and its participation in Avales
under the C Revolving Credit Facility would exceed its C Revolving Credit
Facility Commitment; or


 


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


 


(h)           No Issuing Entity
has a duty to enquire of any person whether or not the conditions set out in
paragraph (g) above have been met. The Issuing Entity may assume that those
conditions have been met unless it is expressly notified to the contrary by the
Facility Agent. The Issuing Entity will have no liability to any person for
issuing an Aval based on any such assumption.


 


7.             AVALES


 


7.1          Authority
to pay claims under an Aval


 


(a)           Each Borrower
irrevocably and unconditionally authorises the Issuing Entities to pay any
claim made or purported to be made under an Aval which appears on its face to
be in order (a claim), the amount of any such
claim being a Claimed Amount.


 


(b)           Each Borrower
acknowledges that the Issuing Entities:


 


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


 


38

















 


(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.


 


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


 


(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.


 


7.2          Lenders’
Indemnity


 


(a)           Subject to the
terms of this Agreement, each Lender unconditionally and irrevocably agrees to
pay to each Issuing Entity, on demand, an amount equal to its share of any
Claimed Amount in accordance with the arrangements for payment set out in
Clause 7.5 (Settlement of Claims under Lenders’ Indemnity) (such demand being
an Indemnity Claim).


 


(b)           No Indemnity
Claim can be made in respect of any Claimed Amount for which an Issuing Entity
has otherwise been reimbursed including, without limitation, by way of the
provision of cash cover to the Issuing Entity out of the proceeds of a Loan.


 


(c)           Each Lender’s
share of any Claimed Amount referred to in Clause 7.2(a) (Lenders’ Indemnity)
shall be its Pro rata Share on the Utilisation Date of the relevant Aval but
adjusted to reflect any subsequent assignment or transfer under this Agreement.


 


(d)           The maximum
aggregate liability of each Lender to the Issuing Entities under this Clause
7.2 (Lenders’ Indemnity) shall be automatically reduced by an amount equal to:


 


(i)            any payments made
by that Lender to an Issuing Entity under or in respect of an Aval; and


 


(ii)           that Lender’s
share (determined in accordance with Clause 7.2(c) (Lenders’ Indemnity) of:


 


(A)          any payment made
by a Borrower to an Issuing Entity in relation to a Claimed Amount pursuant to
Clause 7.3 (Borrower Indemnities); and


 


(B)           any reduction in
the amount of an Aval other than as a result of a repayment or prepayment.


 


(e)           The obligations
of any Lender under this Clause 7.2 (Lenders’ Indemnity) and Clause 7.3
(Borrower Indemnities) will, in each case, 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 and Clause 7.3 (Borrower Indemnities) (as
appropriate) (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;


 


39

















 


(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 Aval or any other document or
security; or


 


(vii)         any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document, any Aval or any other document or security.


 


(f)            Until the
Syndication Date, the indemnities given to each Issuing Entity pursuant to this
Clause are given by each Lender to its Related Issuing Entity only and on and
from the Syndication Date by each Lender to each Issuing Entity.


 


(g)           Any failure by
any Party to perform its obligations under an Aval or under this Agreement
shall not relieve or discharge any other Party of its obligations under the
relevant Aval or under this Agreement. The failure of a Lender to perform its
obligations under this Clause shall not affect or increase the liability of any
other Lender under this Clause.


 


(h)           The obligations
of each Lender under this Clause 7.2 (Lenders’ Indemnity) are:


 


(i)            continuing
obligations and will extend to the ultimate balance of all amounts payable by
that Lender under or in connection with any Aval, regardless of any
intermediate payment or discharge in whole or in part;


 


(ii)           several; and


 


(iii)          independent,
primary obligations which each Lender undertakes as principal, and not as a
surety or guarantor.


 


For the purpose
of this Agreement the Avales will constitute and shall be treated as a “standby”
for the purposes of Rule 1.01 of the ISP. The ISP shall apply to each such
obligation, to the extent not inconsistent with the terms of the Finance
Documents.


 


7.3          Borrower
Indemnities


 


(a)           Each Borrower
must on demand by an Indemnified Party:


 


(i)            indemnify that
Indemnified Party against any loss or liability which that Indemnified Party
incurs under or in connection with the Relevant Obligations or that Indemnified
Party’s performance of the Relevant Obligations (unless caused by the gross
negligence or wilful misconduct of that Indemnified Party); and


 


(ii)           reimburse that
Indemnified Party for any amount demanded of, or paid by, it under the Relevant
Obligations in the currency of the relevant amount of the relevant demand,
provided that to the extent the Borrowers are obliged to reimburse the Lenders
under this Agreement, the claims of the Lenders against the Borrowers in
respect of such reimbursement shall be evidenced by one or more Loans arising
under Clause 7.5(c) (Settlement of Claims under Lenders’ Indemnity) and the
provisions of Clause 7.5 (Settlement of Claims under Lenders’ Indemnity) will
govern such reimbursement.


 


(b)           Each Borrower
irrevocably and unconditionally authorises and directs each Indemnified Party
to pay any demand made under or in connection with the Relevant Obligations and
confirm that each Indemnified Party shall be entitled to pay any demand which
appears on its face to be in order. Each Borrower agrees that in respect of the
Relevant Obligations no Indemnified Party is concerned with 


 


40

















 


the legality of the claim or any underlying
transaction or any set-off, counterclaim or defence as between any Indemnified
Party and any other person.


 


(c)           The obligations
of the Borrowers under this Clause 7.3 (Borrower Indemnities) shall be
continuing obligations, shall extend to the ultimate balance of all amounts
expressed to be payable by that Borrower under or in connection with any Aval,
regardless of any intermediate payment or discharge in whole or in parts of
amounts payable hereunder.


 


7.4          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.


 


7.5          Settlement
of Claims under Lenders’ Indemnity


 


(a)           If an Issuing
Entity wishes to make an Indemnity Claim under Clause 7.2 (Lenders’ Indemnity),
it shall do so by serving, if prior to the Syndication Date, on each Lender
providing such indemnity or, if on or after the Syndication Date,  on the Facility Agent a duly completed
Indemnity Claim Notice specifying the Claimed Amount and the amount of each
Lenders’ share of that Claimed Amount determined in accordance with Clause
7.2(c) (Lenders’ Indemnity). The Facility Agent must serve a copy of any
Indemnity Claim Notice received by it on each Lender promptly upon receipt of
the same.


 


(b)           Any Indemnity
Claim Notice must be substantially in the form set out in Schedule 8 (Form of
Indemnity Claim Notice). If in that form and if properly completed, such
Indemnity Claim Notice shall, in the absence of manifest error, be prima facie evidence of the matters to which it relates.


 


(c)           Each Lender will
make payment of its share of any Indemnity Claim on the date falling one
Business Day after receipt of the relevant Indemnity Claim Notice (the Payment Date). Any such payment must be made to the Facility
Agent for the account of the relevant Issuing Entity. The Facility Agent will
immediately remit such payments to or to the order of the relevant Issuing
Entity in accordance with the payment instructions such Issuing Entity shall
from time to time provide to the Facility Agent for this purpose.


 


(d)           If a Lender makes
payment of any amount due pursuant to an Indemnity Claim, that Lender shall
automatically be subrogated to the rights of the relevant Issuing Entity in
respect of such payment.


 


(e)           The making of a
payment by a Lender pursuant to this Clause 7.5 (Settlement of Claims under
Lenders’ Indemnity) shall, to the extent that Lender at that time has an
Available Commitment (calculated for the purpose of this Clause 7.5(e)
(Settlement of Claims under Lenders’ Indemnity) without taking into account any
utilisation under this Agreement by way of Avales), constitute a utilisation by
way of the borrowing of Loans by Imperial Finance under:


 


(i)            at any time when
there are Available Commitments in respect of the A Term Loan Facility, the A
Term Loan Facility;


 


(ii)           at any time when
there are no Available Commitments in respect of the A Term Loan Facility but
there are Available Commitments under the B Term Loan Facility, the B Term Loan
Facility;


 


(iii)          at any time when
there are no Available Commitments in respect of the A Term Loan Facility or B
Term Loan Facility but there are Available Commitments in respect of the C Term
Loan Facility, the C Term Loan Facility; and


 


41

















 


(iv)          at any time when
there are no Available Commitments in respect of the Term Loan Facilities, the
C Revolving Credit Facility.


 


(f)            The other
provisions of this Agreement shall apply to each such Loan save that:


 


(i)            the
conditions precedent set out in Clauses 4.1 (Conditions precedent documents),
4.3 (Conditions precedent on the First Cash Utilisation Date) and Clause 4.4
(Further conditions precedent to utilisation by way of Loans) shall not apply
to the making of any such Loan; and


 


(ii)           each
such Loan shall have an initial Term of one month commencing on the relevant
Payment Date.


 


(g)           Each Borrower
hereby irrevocably authorises the borrowing of any Loan made under this Clause
7.5 (Settlement of Claims under Lenders’ Indemnity) and agrees to adopt, and
that it shall be liable in respect of, each such Loan as if it was a Loan
borrowed by that Borrower pursuant to a Request.


 


8.             UTILISATION – SWINGLINE LOANS


 


8.1          Giving
of Requests


 


(a)           Imperial Finance
may borrow a Swingline Loan by giving to the Facility Agent and, in the case of
a borrowing of a Swingline Loan denominated in U.S. Dollars, the U.S. Dollar
Swingline Agent a duly completed Request.


 


(b)           Unless the
Facility Agent otherwise agrees, the latest time for receipt by the Facility
Agent and, if applicable, the U.S. Dollar Swingline Agent of a duly completed
Request for a Swingline Loan is:


 


(i)            in the case of a
Swingline Loan denominated in U.S. Dollars, 11.00 a.m. (New York City time); or


 


(ii)           in the case of a
Swingline Loan denominated in Sterling, 1.00 p.m.; or


 


(iii)          in the case of a
Swingline Loan denominated in Euro, 12.00 noon,


 


in each case, on
the proposed Utilisation Date.


 


(c)           Each such Request
for a Swingline Loan is irrevocable.


 


8.2          Completion
of Requests


 


(a)           A Request for a
Swingline Loan under the Swingline Facility will not be regarded as having been
duly completed unless:


 


(i)            it identifies
that the Borrower is Imperial Finance;


 


(ii)           it identifies
that the Loan is a Swingline Loan;


 


(iii)          the Utilisation
Date is a Business Day (or, in the case of a Swingline Loan denominated in U.S.
Dollars, a New York Business Day) falling within the Availability Period for
the Swingline Facility;


 


(iv)          the Term
selected:


 


42

















 


(A)          in the case of a
Swingline Loan denominated in Sterling, is no less than two Business Days; and


 


(B)           in the case of a
Swingline Loan denominated in U.S. Dollars or Euro, is no less than four
Business Days; and


 


and, in each case, no more than ten Business Days;


 


(v)           the Euro
equivalent amount of the Swingline Loan requested does not exceed the amount
available to be drawn under the C Revolving Credit Facility and is:


 


(A)          a minimum of Euro
5,000,000 or its equivalent in accordance with Clause 11 (Currencies) and
an integral multiple of 1,000,000 units of that currency;


 


(B)           the maximum
undrawn amount available under the C Revolving Credit Facility; or


 


(C)           such other amount
as the Facility Agent or the Swingline Lenders may agree;


 


(vi)          the amount of the
Swingline Loan requested does not exceed the amount available to be drawn under
the Swingline Facility; and


 


(vii)         the proposed
currency complies with this Agreement.


 


(b)           Only one
Swingline Loan may be requested in a Request.


 


(c)           Imperial Finance
must, by no later than 11.00 a.m. on the Business Day next following a
Utilisation Date in respect of a Swingline Loan, deliver to the Facility Agent
a duly completed Request for a Loan under the C Revolving Credit Facility in
the currency of that Swingline Loan and for an amount of not less than the
amount of that Swingline Loan, having a Utilisation Date being the Maturity
Date for that Swingline Loan and specifying that the proceeds or a part of the
proceeds of that Loan are to be applied in discharging in full that Swingline
Loan.


 


(d)           If Imperial
Finance fails to deliver a Request for a Loan in accordance with paragraph (c)
above it will be deemed to have delivered a Request for a Loan in the amount of
the relevant Swingline Loan, having a Term of one month and otherwise complying
with that paragraph.


 


8.3          Advance
of a Swingline Loan


 


(a)           The Facility
Agent or, in the case of a borrowing of a Swingline Loan denominated in U.S.
Dollars, the U.S. Dollar Swingline Agent must notify each Swingline Lender of
the details of the requested Swingline Loan and the amount of its share in that
Swingline Loan by:


 


(i)            in the case of a
Swingline Loan in U.S. Dollars, 12.00 noon (New York City time);


 


(ii)           in the case of a
Swingline Loan in Sterling, 2.00 p.m.; or


 


(iii)          in the case of a
Swingline Loan in Euro, 1.00 p.m.,


 


in each case on
the proposed Utilisation Date.


 


(b)           The amount of
each Swingline Lender’s share of the Swingline Loan will be its Pro rata Share
on the proposed Utilisation Date adjusted to take account of any limit applying
under this Clause.


 


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


 


43

















 


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


 


(ii)           the aggregate
amount of all C Revolving Credit Loans and Swingline Loans outstanding
(including in the relevant Request) would exceed the Total C Revolving Credit
Commitments.


 


(d)           If the relevant
conditions set out in this Agreement have been met, each Swingline Lender must
make its share in the Swingline Loan available to the Facility Agent or, in the
case of a borrowing of a Swingline Loan denominated in U.S. Dollars, the U.S.
Dollar Swingline Agent, for Imperial Finance on the Utilisation Date.


 


8.4          Swingline
Facility Extension Option


 


(a)           Subject as set
out below, Imperial Finance may, by notice to the Facility Agent, request the
Swingline Lenders (or any other Lender) to provide the Swingline Facility for
certain periods after the Conversion Date.


 


(b)           The Swingline
Extension Notice may only be issued to the Facility Agent by Imperial Finance
at least 30 days, but no more than 60 days, prior to:


 


(i)            the Conversion
Date; or


 


(ii)           the last day of
each Swingline Extension Period (as defined below) thereafter,


 


(each a Swingline Extension
Date).


 


(c)           Subject as set
out below, any extension of the Swingline Facility under a Swingline Extension
Notice will be for the period commencing on the relevant Swingline Extension
Date and ending on the date 364 days thereafter (each such period a Swingline Extension  Period).


 


(d)           No Swingline
Extension Period will overrun the relevant Final Maturity Date and the final
Swingline Extension Period will be shortened accordingly.


 


(e)           If a Swingline
Extension Notice is delivered to the Facility Agent, the Facility Agent will
promptly notify the U.S. Dollar Swingline Agent, the Swingline Lenders and each
other Lender selected by Imperial Finance to that effect.


 


(f)            Each Lender which
is notified under paragraph (e) above will notify Imperial Finance by no later
than the date falling ten Business Days prior to the Swingline Extension Date
whether they are prepared to provide the Swingline Facility for the relevant
Swingline Extension Period and, if so the maximum Swingline Commitment for that
Swingline Facility it is prepared to provide.


 


(g)           If:


 


(i)            one or more
Lenders agree to provide the Swingline Facility for the relevant Swingline
Extension Period;


 


(ii)           Imperial Finance
confirms to the Facility Agent by no later than the Business Day immediately
prior to the Swingline Extension Date that it wishes that Lender to provide the
Swingline Facility for the relevant Swingline Extension Period and the amount
(not exceeding the maximum amount specified by the relevant Lender or, in
aggregate, the amount of Swingline Commitments) of the Swingline Facility which
Imperial Finance wishes it to provide;


 


44

















 


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


 


(iv)          there is no
Default outstanding,


 


the Lender or
Lenders selected by Imperial Finance shall on the Swingline Extension Date
acquire a Swingline Commitment equal to the amount specified by Imperial
Finance under paragraph (ii) above.


 


8.5          Relationship
with the Revolving Credit Facility


 


(a)           The Swingline
Commitments must not at any time exceed the C Revolving Credit Commitments and,
if necessary, the Swingline Commitments will be automatically reduced to
achieve this.


 


(b)           Any reduction of
the Swingline Commitments under paragraph (a) above will be applied pro rata against the Commitments of the Swingline Lenders
under the Swingline Facility at that time.


 


8.6          Non-payment
of Swingline Loans


 


(a)           If a Swingline
Loan is not repaid on its due date, each Lender must pay to the Facility Agent
for the Swingline Lenders an amount calculated as described below.


 


(b)           The amount (if
any) required to be paid by a Lender is the proportion of the Swingline Loan
not repaid (together with any interest accrued and unpaid on that amount from
the Utilisation Date of the Swingline Loan to the date of payment by that
Lender) which the C Revolving Credit Commitment of that Lender bears to the
Total C Revolving Credit Commitments.


 


(c)           On a payment
under this Clause 8.6, the paying Lender will be subrogated to the rights
of the Swingline Lenders which have shared in the payment received.


 


(d)           If and to the
extent the paying Lender is not able to rely on its rights under paragraph (c)
above,  Imperial Finance will be liable
to the paying Lender for a debt equal to the amount the paying Lender has paid
under this Clause 8.6 and the liability of Imperial Finance to the
Swingline Lenders will be reduced accordingly.


 


(e)           Any payment under
Clause 8.6 does not reduce the obligations in aggregate of any Obligor.


 


9.             SWINGLINE LOANS


 


9.1          Interest


 


(a)           The rate of
interest on each Swingline Loan denominated in U.S. Dollars (other than a
Swingline Loan issued for the purposes set out in paragraph (b) below) for each
day during its Term is the aggregate of:


 


(i)            the applicable
Margin; and


 


(ii)           the rate per
annum determined by the U.S. Dollar Swingline Agent to be the Federal Funds
Rate on or about 1.00 p.m. (New York City time) on that day.


 


(b)           The rate of
interest on each Swingline Loan denominated in U.S. Dollars to the extent made
for the purpose of refinancing commercial paper denominated in U.S. Dollars for
each day during its Term is the higher of:


 


45

















 


(i)            the prime
commercial lending rate in U.S. Dollars announced by the U.S. Dollar Swingline
Agent and in force on that day; and


 


(ii)           0.50 per cent.
per annum over the the rate per annum determined by the U.S. Dollar Swingline
Agent to be the Federal Funds Rate on or about 1.00 p.m. (New York City time)
on that day.


 


(c)           For the purposes
of paragraph (a) and (b) above, Federal Funds Rate means in relation to any
day, the rate per annum equal to:


 


(i)            the weighted
average of the rates on overnight Federal funds transactions with members of the
U.S. Federal Reserve System arranged by Federal funds brokers, as published for
that day (or, if that day is not a New York Business Day, for the immediately
preceding New York Business Day) by the Federal Reserve Bank of New York; or


 


(ii)           if a rate is not
published for that day or preceding day, the average of the quotations for that
day on those transactions received by the U.S. Dollar Swingline Agent from
three Federal funds brokers of recognised standing selected by the U.S. Dollar
Swingline Agent in consultation with Imperial Finance.


 


If any day during
a Term of a Swingline Loan denominated in U.S. Dollars is not a New York
Business Day the rate of interest on that Loan for that day will be the rate
applicable on the immediately preceding New York Business Day.


 


(d)           The rate of
interest on each Swingline Loan denominated in Sterling or Euro for a Term will
be the aggregate of:


 


(i)            the applicable
Margin;


 


(ii)           the arithmetic
mean (rounded upwards to four decimal places) of the rates, as supplied to the
Facility Agent at its request, quoted by each Swingline Lender having a
Swingline Commitment at that time to leading banks in the London interbank
market at the time that the Facility Agent notifies such Swingline Lender in
accordance with Clause 8.3(a) (Advance of a Swingline Loan) for the
offering of deposits in the currency of that Loan for a period comparable to
that Term; and


 


(iii)          the applicable
Mandatory Cost (if any).


 


(e)           Except where it
is provided to the contrary in this Agreement, Imperial Finance must pay
accrued interest on each Swingline Loan made to it on the last day of its Term.


 


(f)            Any other term of
this Agreement relating to:


 


(i)            calculation of
the rate of interest (but not interest on overdue amounts); or


 


(ii)           market
disruption,


 


does not apply to
Swingline Loans.


 


9.2          Term


 


Notwithstanding
any other term of this Agreement:


 


(a)           each Swingline Loan has one
Term only; and


 


46
















 


(b)           the
Term for a Swingline Loan must be selected in the relevant Request.


 


9.3          Partial
payments


 


(a)           If the Facility
Agent, or the U.S. Dollar Swingline Agent, receives a payment in respect of the
Swingline Facility insufficient to discharge all the amounts then due and
payable by Imperial Finance to the Swingline Lenders under this Agreement, the
Facility Agent or the U.S. Dollar Swingline Agent as the case may be must apply
that payment towards the obligations of Imperial Finance under the Finance Documents
in respect of the Swingline Facility in the following order:


 


(i)            first, in or
towards payment pro rata of any unpaid fees,
costs and expenses of the Facility Agent or the U.S. Dollar Swingline Agent as
the case may be under the Finance Documents incurred in respect of the
Swingline Facility;


 


(ii)           secondly, in or
towards payment pro rata of any accrued interest
on a Swingline Loan due but unpaid under this Agreement; and


 


(iii)          thirdly, in or
towards payment pro rata of the principal of any
Swingline Loan due but unpaid under this Agreement.


 


(b)           The Facility
Agent and the U.S. Dollar Swingline Agent must, if so directed by all the
Swingline Lenders, vary the order set out in Clauses 9.3(a)(ii) and (iii)
(Partial payments), as appropriate.


 


(c)           This Clause 9.3
will override any appropriation made by Imperial Finance.


 


(d)           Any other term of
this Agreement in relation to partial payments does not apply to the Swingline
Facility.


 


10.          UTILISATION – UNCOMMITTED FACILITY


 


10.1        Commitment
Requests


 


(a)           Subject as set
out below, Imperial Finance may, by notice to the Facility Agent, request the
Lenders to provide a Commitment for an Availability Period under the
Uncommitted Facility.


 


(b)           A Commitment
Request may only be issued to the Facility Agent by Imperial Finance at least
10 Business Days, but no more than six months, prior to an Anticipated U.K.
Duty Change Date.


 


(c)           A Commitment
Request must be delivered to the Facility Agent not later than 10.00 a.m. on a
particular Business Day or that Commitment Request will be deemed for the
purpose of this Agreement to have been received by the Facility Agent at 9.00
a.m. on the following Business Day.


 


(d)           The Facility
Agent must by the Prescribed Time notify each Lender of the details of the
Commitment Request.


 


(e)           Without the
consent of the Majority Lenders, no more than two Anticipated U.K. Duty Change
Dates may fall in any period of twelve consecutive months.


 


10.2        Completion
of Commitment Requests


 


(a)           A Commitment
Request under the Uncommitted Facility will not be regarded as having been duly
completed unless:


 


(i)            it identifies
that the Borrower is Imperial Finance;


 


47

















 


(ii)           it specifies the
date of the relevant Anticipated U.K. Duty Change Date;


 


(iii)          the amount of the
Commitment requested (the Requested Amount)
is:


 


(A)          a minimum of
£10,000,000 and an integral multiple of £1,000,000; or


 


(B)           such other amount
as the Facility Agent may agree,


 


and does not
exceed the amount determined in accordance with paragraph (b) below; and


 


(iv)          the proposed
currency is Sterling.


 


(b)           Imperial Finance
may issue any number of Commitment Requests in relation to a particular
Anticipated U.K. Duty Change Date except that the amount of the Commitment
which Imperial Finance may request under the Uncommitted Facility in relation
to any Anticipated U.K. Duty Change Date will be the Maximum Uncommitted
Facility Amount, if applicable, reduced by the amount of the Commitments which
have been accepted by Imperial Finance under previous Commitment Requests
issued in relation to that Anticipated U.K. Duty Change Date.


 


10.3        Offer
and Acceptance


 


(a)           Each Lender may
make up to five offers to make available a Commitment under the Uncommitted
Facility in relation to each Commitment Request, but the Facility Agent must
receive, not later than the Prescribed Time or such later time as it may agree,
a Commitment Notice specifying, in respect of each offer:


 


(i)            the name of the
Lender;


 


(ii)           the relevant
Anticipated U.K. Duty Change Date;


 


(iii)          the maximum
principal amount of the proposed Commitment which shall be:


 


(A)          a minimum of
£5,000,000 and an integral multiple of £1,000,000; or


 


(B)           the Maximum
Uncommitted Facility Amount,


 


as appropriate;


 


(iv)          the proposed
Margin, expressed as an annual percentage rate to four decimal places; and


 


(v)           the amount and
payment terms in respect of any other fee (if any) required by the Lender to be
paid in connection with:


 


(A)          the relevant
Commitment; and


 


(B)           any Loan advance
in respect of that Commitment.


 


(b)           An offer by the
Facility Agent or one of its Affiliates in its capacity as a Lender shall be
disregarded unless notified to Imperial Finance not later than the Prescribed
Time.


 


(c)           Each offer made
by a Lender under paragraph (a) above shall be a separate and irrevocable
offer.


 


(d)           No Lender is
obliged to make offers in respect of any Commitment Request.


 


48

















 


(e)           The Facility
Agent shall, not later than the Prescribed Time (or, in relation to any valid
offers received after the Prescribed Time, promptly upon receipt), notify
Imperial Finance of any valid offers received by it up to that time, specifying
in respect of each offer:


 


(i)            the name of the
relevant Lender;


 


(ii)           the maximum
principal amount of the proposed Commitment;


 


(iii)          the proposed
Margin; and


 


(iv)          the amount and
payment terms in respect of any other fees (if any) required by the Lender to
be paid in connection with the relevant Commitment and any Loan advanced in
respect of that Commitment.


 


(f)            If Imperial
Finance wishes to accept any offers notified to it under paragraph (e) above,
the Facility Agent must receive from Imperial Finance, not later than the
Prescribed Time, an Acceptance Notice specifying the offers it wishes to accept
and the amount (not, in aggregate, to exceed the Requested Amount) of the
Commitment in relation to each offer which it wishes to accept.


 


(g)           Subject to the
terms of this Agreement, each acceptance of an offer shall, subject to the
terms of this Agreement, be irrevocable and binding on Imperial Finance and the
relevant Lender.


 


(h)           If Imperial
Finance fails to notify the Facility Agent before the Prescribed Time for the
purpose of paragraph (f) above that it wishes to accept an offer that offer
shall lapse and the rights and obligations of the relevant Lender in relation
to that offer shall automatically terminate.


 


(i)            The Facility
Agent shall, not later than the Prescribed Time, notify each Lender, with a
copy being also sent to Imperial Finance, which has made an offer whether or
not its offer has been accepted and, if so, specifying in respect of such
offer:


 


(i)            the amount of its
Commitment;


 


(ii)           the applicable
Margin; and


 


(iii)          the amount and payment terms in respect of any fees
(if any).


 


(j)            If the relevant
conditions set out in this Agreement have been met, on acceptance by Imperial
Finance of an offer made by a Lender, the Lender will acquire a Commitment
under the Uncommitted Facility in the amount specified by the Facility Agent
under paragraph (i) above.


 


10.4        Giving
of Requests


 


(a)           Imperial Finance
may request a Loan under the Uncommitted Facility 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 Request for a Loan under the Uncommitted Facility is 11.00 a.m. one
Business Day before the Rate Fixing Day for the proposed borrowing.


 


(c)           Each such Request
is irrevocable.


 


49

















 


10.5        Completion
of Requests


 


(a)           A Request for a
Loan under the Uncommitted Facility will not be regarded as having been duly
completed unless:


 


(i)            it identifies
that the Borrower is Imperial Finance;


 


(ii)           it identifies the
Lender and the Commitment which the Loan applies to;


 


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


 


(iv)          the amount of the
Loan requested is:


 


(A)          a minimum of
£5,000,000 and an integral multiple of £1,000,000; or


 


(B)           the maximum
amount of the Commitment;


 


(v)           the proposed
currency is Sterling;


 


(vi)          the proposed Term
is no longer than 93 days; and


 


(vii)         the payment
instructions comply with Clause 20.1 (Place of Payments).


 


(b)           Imperial Finance
may only make one Request for a Loan under the Uncommitted Facility in relation
to each offer accepted by Imperial Finance.


 


(c)           On the issue of a
Request by Imperial Finance for a Loan under a Commitment under the Uncommitted
Facility any part of that Commitment in excess of the requested amount shall
automatically be cancelled.


 


10.6        Advance
of Loan


 


(a)           The Facility
Agent must promptly notify each Lender of the details of the requested Loan.


 


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


 


(i)            the amount of the
Loan would exceed its relevant Commitment; or


 


(ii)           the aggregate amount of the
Loans under the Uncommitted Facility would exceed the Maximum Uncommitted
Facility Amount.


 


(c)           If the relevant
conditions set out in this Agreement have been met the Lender must make the
Loan available to the Facility Agent for Imperial Finance on the Utilisation
Date.


 


11.          CURRENCIES


 


11.1        Denomination


 


(a)           Loans under the A
Term Loan Facility may only be denominated in Euro.


 


(b)           Loans under the B
Term Loan Facility may only be denominated in Euro.


 


(c)           Loans under the C
Term Loan Facility may only be denominated in Euro.


 


(d)           Each Aval may
only be denominated in Euro.


 


50

















 


(e)           Loans under the A
Revolving Credit Facility may only be denominated in U.S. Dollars.


 


(f)            Loans under the B
Revolving Credit Facility may only be denominated in Sterling;


 


(g)           Loans under the C
Revolving Credit Facility may only be denominated in Euro or, subject as
provided below, an Optional Currency.


 


(h)           Loans under the
Uncommitted Facility may only be denominated in Sterling.


 


(i)            Loans under the
Swingline Facility may only be denominated in Euro or, subject as provided
below, Sterling or U.S. Dollars.


 


11.2        Selection


 


A Borrower must
select the currency of a Loan in its Request.


 


11.3        Conditions
relating to currencies


 


(a)           A Loan under the
C Revolving Credit Facility may be denominated in an Optional Currency and a
Loan under the Swingline Facility may be denominated in Sterling or U.S.
Dollars in each case for a Term if:


 


(i)            that currency is
readily available in the amount required and freely convertible into Euros in
the relevant interbank market on the Rate Fixing Day and the first day of that
Term; and


 


(ii)           in the case of a
Loan under the C Revolving Credit Facility, that currency is Sterling or U.S.
Dollars or has been previously approved by the Facility Agent (acting on the
instructions of all the C Revolving Credit Lenders),


 


provided that a
Loan under the C Revolving Credit Facility which is made to refinance a Loan
under the Swingline Facility shall be denominated in the currency of that
Swingline Loan.


 


(b)           If the Facility
Agent has received a request from the Obligors’ Agent for a currency to be
approved as an Optional Currency, the Facility Agent must, within five Business
Days, confirm to the Obligors’ Agent:


 


(i)            whether or not
the Lenders have given their approval; and


 


(ii)           if approval has
been given, the minimum amount (and, if required, integral multiples) for any
Loan in that currency.


 


11.4        Revocation
of currency


 


(a)           Notwithstanding
any other term of this Agreement, if before 9.30 a.m. on any Rate Fixing Day in
relation to a Loan under the C Revolving Credit Facility the Facility Agent
receives notice from a Lender that:


 


(i)            the Optional
Currency requested is not readily available to it in the relevant interbank
market in the amount and for the Term required; or


 


(ii)           participating in
a Loan in the proposed Optional Currency might contravene any law or regulation
applicable to it,


 


51

















 


the Facility
Agent must give notice to the Obligors’ Agent to that effect promptly and in
any event before 11.00 a.m. on that day.


 


(b)           In this event:


 


(i)            that Lender must
participate in the Loan in Euros; and


 


(ii)           the share of that
Lender in the Loan and any other similarly affected Lender(s) will be treated
as a separate Loan denominated in Euros for that Term.


 


(c)           Any part of a
Loan treated as a separate Loan under this Clause 11.4 will not be taken
into account for the purposes of any limit on the number of Loans or currencies
outstanding at any one time.


 


(d)           A C Revolving
Credit Loan will still be treated as a Rollover Loan if it is not denominated
in the same currency as the maturing C Revolving Credit Loan by reason only of
the operation of this Clause 11.4.


 


11.5        Notification


 


The Facility
Agent must notify the Lenders and the Obligors’ Agent of the relevant Euro
Amount (and the applicable Agent’s Spot Rate of Exchange) promptly after they
are ascertained.


 


12.          REPAYMENT


 


12.1        Repayment
of Term Loans


 


Each Borrower
must repay the Term Loans in full on the relevant Final Maturity Date.


 


12.2        Repayment
of Revolving Credit Loans and Swingline Loans


 


(a)           Each Borrower
must repay each Revolving Credit Loan and each Swingline Loan in full on its
Maturity Date.


 


(b)           Subject to the
other terms of this Agreement, any amounts repaid under paragraph (a) above may
be re-borrowed.


 


12.3        Cash
Collateralisation of Avales


 


Each Borrower
must provide cash cover in respect of the full amount of each Aval on the Aval
Cash Collateralisation Date to the extent not repaid or prepaid prior to or on
that date.


 


13.          PREPAYMENT AND CANCELLATION


 


13.1        Mandatory
prepayment - illegality


 


(a)           A Lender must
notify the Facility Agent and 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 and subject to Clause 33.9 (Replacement
of a Lender):


 


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


 


52

















 


(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.


 


13.2        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.


 


13.3        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 per cent. 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.


 


13.4        Mandatory
prepayment from relevant issuance


 


(a)           In this subclause
relevant issuance means any issue, sale
or public offering of any debt in the debt capital markets by any member of the
Group (including any issue of Hybrid Securities) excluding:


 


(i)            any issue, sale
or public offering of any such debt having a maturity of less than 365 days;


 


(ii)           any Financial
Indebtedness incurred by any member of the Group in relation to any acquisition
of the shares in Cat;


 


(iii)          any issue of
Financial Indebtedness in respect of monies borrowed or raised by any member of
the Group under any local or working capital facilities on a bilateral basis;


 


(iv)          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 or Tiger Group prior to the date of this Agreement;


 


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


 


53

















 


(vi)          any issue of
Financial Indebtedness in respect of monies borrowed or raised by any member of
the Group under any facilities with any bank or financial institution or
syndicate of no more than three banks or financial institutions or any
facilities arranged on a club deal basis with up to three banks or financial
institutions in each case not falling within paragraphs 13.4(a)(i) to
13.4(a)(v) (inclusive) above provided that such Financial Indebtedness does not
exceed €750,000,000 (or equivalent);


 


(vii)         the equity component of any
issue of Hybrid Securities; and


 


(viii)        any
Financial Indebtedness incurred by a member of the Group in relation to an
acquisition of shares in Aldeasa S.A. but excluding any amount received and
retained by a member of the Group under Clause 13.5(a)(ii) prior to incurring
such debt.


 


(b)           The Obligors’
Agent must apply or must procure there is applied, until such time as the A
Term Loan Facility has been repaid and discharged in full, an amount equal to
the Net Proceeds of any relevant issuance in or towards the prepayment of the A
Term Loans.


 


(c)           Once all amounts
outstanding under the A Term Loan Facility have been repaid and discharged in
full, any such Net Proceeds may be retained by the Group or (at the Obligors’
Agent’s absolute discretion) applied in whole or in part in voluntary
prepayment of the Facilities, such voluntary prepayment to be applied against
the Facilities as the Obligors’ Agent may notify the Facility Agent in writing
prior to such prepayment.


 


(d)           If at any time there is a difference in the amount of
the equity component of any Hybrid Security as determined by Moody’s and
S&P (or an equivalent statistical rating agency) the equity component will
for the purposes of this Clause be deemed to be the higher of such amounts.


 


13.5        Mandatory
prepayment from relevant disposals


 


(a)           In this subclause
relevant disposal means a disposal of
any asset or business (whether by way of share or asset sale) by a member of
the Group to a person who is not a member of the Group excluding:


 


(i)            any sale,
transfer, leasing or other disposal;


 


(A)          made in the
ordinary course of trading of a member of the Group;


 


(B)           of fixed assets
in exchange for other fixed assets comparable or superior as to type, value and
quality;


 


(C)           of a fixed asset,
the Net Proceeds of which are used within nine months of that disposal to
purchase a fixed asset to replace directly or indirectly the fixed asset the
subject of that disposal; and


 


(D)          of cash and other
assets comprising Consolidated Cash or Cash Equivalents on terms not otherwise
prohibited by the Facilities Agreement;


 


(ii)           the first Euro
600,000,000 (or equivalent) of the aggregate consideration from any disposal
of:


 


(A)          any shares held
by Tiger or a member of the Tiger Group in Iberia, Lineas Aereas de España, S.A.;


 


54

















 


(B)           assets required
to be made by Imperial or any of its subsidiaries under any competition
clearances obtained in connection with the offer for the Tiger Shares;


 


(C)           any shares held
by Tiger or a member of the Tiger Group in Cat; and


 


(D)          any shares held
by Tiger or a member of the Tiger Group in Aldeasa S.A.;


 


(iii)          for so long as no Default is
outstanding, the consideration from the disposals of any assets or business
(whether by way of share or asset sale) to the extent that:


 


(A)          the Net Proceeds from such disposals are used to
prepay amounts outstanding under the Equity Bridge Facility Agreement within 90
days of receipt of such Net Proceeds by any member of the Group; and


 


(B)           Imperial has received confirmation in a form and in substance
satisfactory to the Facility Agent (acting reasonably) from S&P and Moody’s
that the long term credit rating assigned to the Group after and taking into account
the relevant disposal and prepayment and a Rights Issue which results in Net
Proceeds in an amount (taking into account such prepayment) sufficient to repay
the Equity Bridge Facility Agreement in full will be no lower than BBB- by
S&P or Baa3 by Moody’s; and


 


(iv)          any disposals of
assets or business to the extent that the equivalent in Euros of the aggregate
consideration for any individual asset or business (other than as set out in
(i) to (iii)above) after the date of this Agreement is equal to or less than
Euro 25,000,000 (or equivalent) and for all such disposals (other than as set
out in (i) to (iii) (inclusive) above) after the date of this Agreement is
equal to or less than Euro 100,000,000 (or equivalent) in any financial year.


 


(b)           The Obligors’
Agent must apply or must procure there is applied, until such time as the Term
Loans and the A Revolving Credit Facility and B Revolving Credit Facility have
been repaid in full, an amount equal to the Net Proceeds of any relevant
disposal in or towards the prepayment of such Facilities as the Obligors’ Agent
may notify the Facility Agent in writing prior to such prepayment.


 


13.6        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 (other than pursuant to Clause 24.7 (Demand in respect of
Avales)) must be in a minimum amount of Euro 25,000,000 (or equivalent) and
integral multiples of Euro 5,000,000 (or equivalent) or, if less, the
outstanding amount of that Credit.


 


13.7        Automatic
cancellation


 


The Commitments of each Lender will be automatically
cancelled at the close of business on the last day of the applicable
Availability Period.


 


13.8        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.


 


55

















 


(b)           Partial cancellation
of the Total Commitments must be in a minimum amount of Euro 25,000,000
(or equivalent) and an integral multiple of Euro 5,000,000 (or equivalent) 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 that Facility pro rata.


 


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


 


13.9        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 33.9 (Replacement
of a Lender):


 


(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.


 


13.10      Partial
prepayment of Term Loans


 


Save as set out
in Clause 5.1(e) (Giving of Requests), no amount of a Term Loan prepaid under
this Agreement may subsequently be re-borrowed.


 


13.11      Re-borrowing
of Revolving Credit Loans and Swingline Loans


 


Any voluntary prepayment of
a Revolving Credit Loan or a Swingline Loan may be re-borrowed on the terms of
this Agreement. Any mandatory or involuntary prepayment of a Revolving Credit
Loan or a Swingline Loan may not be re-borrowed.


 


13.12      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 on 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.


 


56

















 


(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.


 


13.13      Application
of amounts in cancellation or prepayment


 


(a)           Any cancellation
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 13, if any amount is mandatorily prepaid under this
Agreement (other than, for the avoidance of doubt, pursuant to
Clause 13.8(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.


 


(c)           Any voluntary
prepayment will be applied as between the Facilities in accordance with the
instructions of the Obligors’ Agent.


 


14.          INTEREST


 


14.1        Calculation
of interest


 


The rate of
interest on each Loan (other than a Swingline Loan or Uncommitted Loan) for
each Term is the percentage rate per annum equal to the aggregate of the
applicable:


 


(a)           Margin;


 


(b)           LIBOR or, in the case of a
Loan denominated in Euros, EURIBOR; and


 


(c)           Mandatory Cost (if any).


 


14.2        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, if the Term
is longer than six months, on the dates falling at six-monthly intervals after
the first day of that Term.


 


14.3        Margin


 


(a)           Subject to paragraph
(b) below and Clause 14.4 (Margin step-up), the Margin for each Loan
(other than a Loan under the Uncommitted Facility or a Loan under the Swingline
Facility denominated in U.S. Dollars) will be determined in accordance with the
table below:


 


	
  Facility

  	
   

  	
  Margin

  
	
  A Term Loan
  Facility

  	
   

  	
  0.45 per cent.
  per annum

  
	
  B Term Loan
  Facility

  	
   

  	
  0.525 per cent.
  per annum

  
	
  C Term Loan Facility

  	
   

  	
  0.575 per cent. per annum

  
	
  A and B Revolving Credit Facilities

  	
   

  	
  0.525 per cent. per annum

  
	
  C Revolving
  Credit Facility

  	
   

  	
  0.575 per cent.
  per annum

  
	
  Swingline
  Facility

  	
   

  	
  0.45 per cent.
  per annum

  



 


57

















 


(b)           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. (1.00%) above the
Margin set out in Clause 14.4 (Margin step-up) below opposite the ratings for
Baa3 in the case of Moody’s and BBB- in the case of S&P.


 


14.4        Margin
step-up


 


(a)           The Margin for
all Loans (other than Loans under the Uncommitted Facility or a Loan under the
Swingline Facility denominated in U.S. Dollars) will on each date on which a
revised long term credit rating assigned to Imperial by either Moody’s or
S&P after the First Cash Utilisation Date is published or withdrawn be
adjusted to the percentage rate specified in the table below set opposite the
relevant long term credit rating assigned to Imperial.


 


	
   

  	
   

  	
   

  	
   

  	
  Margin
  (per cent. per annum)

  	
   

  
	
  Rating

  (Moody’s)

  	
   

  	
  Rating

  (S&P)

  	
   

  	
  A Term

  Loan

  Facility

  	
   

  	
  B Term

  Loan

  Facility

  	
   

  	
  C Term
  Loan

  Facility

  	
   

  	
  A and
  B

  Revolving

  Credit

  Facilities

  	
   

  	
  C
  Revolving

  Credit

  Facility

  	
   

  	
  Swingline

  Facility

  	
   

  
	
  Baa1

  (or higher)

  	
   

  	
  BBB+

  (or higher)

  	
   

  	
  0.35

  	
   

  	
  0.425

  	
   

  	
  0.475

  	
   

  	
  0.425

  	
   

  	
  0.475

  	
   

  	
  0.35

  	
   

  
	
  Baa2

  	
   

  	
  BBB

  	
   

  	
  0.40

  	
   

  	
  0.475

  	
   

  	
  0.525

  	
   

  	
  0.475

  	
   

  	
  0.525

  	
   

  	
  0.40

  	
   

  
	
  Baa3

  	
   

  	
  BBB-

  	
   

  	
  0.45

  	
   

  	
  0.525

  	
   

  	
  0.575

  	
   

  	
  0.525

  	
   

  	
  0.575

  	
   

  	
  0.45

  	
   

  
	
  Ba1

  (or lower)

  	
   

  	
  BB+

  (or lower)

  	
   

  	
  1.45

  	
   

  	
  1.525

  	
   

  	
  1.575

  	
   

  	
  1.525

  	
   

  	
  1.575

  	
   

  	
  1.45

  	
   

  



 


(b)           Any adjustment to
the Margin (whether upwards or downwards) will apply from the date of
publication of any relevant change to the long term credit rating assigned to
Imperial by Moody’s or S&P except that for any adjustment prior to the
First Cash Utilisation Date will only apply on and from the First Cash
Utilisation Date (to the extent that the circumstances giving rise to that
adjustment still apply) and until that date the Margin set out above opposite
the ratings Baa3 in the case of Moody’s and BBB- in the case of S&P will
apply.


 


(c)           If at any time
there is a difference in the long term credit rating assigned to Imperial by
each of Moody’s and S&P (or only one such agency assigns a long term credit
rating to Imperial) the Margin will be determined on the basis of the lower (or
the only) such rating.


 


(d)           If either S&P
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 and the Obligors’ Agent, both acting reasonably.


 


(e)           Following any
substitution under paragraph (d) above, references in this Clause 14
(Interest) to Moody’s or S&P or the credit ratings of Moody’s or S&P
shall be to such substitute rating agency or the equivalent credit ratings of
that substitute rating agency as the case may be.


 


58

















 


(f)            If none of Moody’s,
S&P, Fitch or any other statistical ratings agency appointed under
paragraph (d) above assign a long term credit rating to Imperial the Margin set
out above opposite the ratings Ba1 (or lower) in the case of Moody’s and BB+
(or lower) in the case of S&P will apply, such Margin for the avoidance of
doubt will continue to be subject to any other adjustments to that Margin then
applicable.


 


14.5        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.


 


(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.


 


14.6        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.


 


15.          TERMS


 


15.1        Selection
– Term Loans


 


(a)           Each Term Loan
has successive Terms.


 


(b)           A Borrower must
select the first Term for a Term Loan in the relevant Request and each
subsequent Term in an irrevocable notice received by the Facility Agent not
later than 11.00 a.m. one Business Day before the Rate Fixing Day for that Term.
The first Term for a Term Loan will start on its Utilisation Date and each
subsequent Term will start on the expiry of the preceding Term for the relevant
Loan.


 


59

















 


(c)           If the Borrower
fails to select a Term for an outstanding Term Loan under Paragraph (b) above,
that Term will, subject to any other provisions of this Clause 15 and Clause
7.5(e) (Settlement of Claims under Lenders’ Indemnity), be one month.


 


(d)           Subject to the
provisions of this Clause 15 and 7.5(e) (Settlement of Claims under Lenders’
Indemnity), each Term for a Term Loan will be one, two, three or six months or
any other period agreed by the Obligors’ Agent and the Lenders.


 


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


 


15.2        Selection
- Revolving Credit Loans


 


(a)           Each Revolving
Credit Loan has one Term only.


 


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


 


(c)           Subject to the
following provisions of this Clause 15, each Term for a Loan will be:


 


(i)            in the case of
the B Revolving Credit Loan or any C Revolving Credit Loan denominated in Euro
or Sterling, any period from 21 days to 35 days or one, two, three or six
months; and


 


(ii)           in the case of
the A Revolving Credit Loan or any C Revolving Credit Loan denominated in any
other Optional Currency, one, two, three or six months,


 


or, in each case,
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 any Facility, each Term for a Revolving Credit Loan may
also be any other period of less than one months duration as selected by the
Obligors’ Agent.


 


15.3        Consolidation
– Term Loans


 


Unless the
Obligors’ Agent otherwise requests, a Term for a Term Loan under a Facility
will end on the same day as the current Term for any other Term Loan under that
Facility denominated in the same currency and having the same designation as
that Term Loan. On the last day of those Terms, those Term Loans will be
consolidated and treated as one Term Loan.


 


15.4        No
overrunning the Final Maturity Date


 


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


 


15.5        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.


 


15.6        Notification


 


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


 


60
















16.          MARKET DISRUPTION


 


16.1        Failure
of a Reference Bank to supply a rate


 


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


 


16.2        Market
disruption


 


(a)           In this
Clause 16, each of the following events is a market
disruption event:


 


(i)            an IBOR is to be calculated
by reference to the Reference Banks but no, or only one, Reference Bank
supplies a rate by 12.00 noon 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 per cent. of that Loan that the cost to
them of obtaining matching deposits in the relevant interbank market is in
excess of the relevant IBOR 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
(if any).


 


16.3        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 affected Loan.


 


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


 


17.          TAXES


 


17.1        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:


 


61

















 


(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 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.


 


(j)            An Obligor is not
required to make an increased payment to a U.K. Non-Bank Lender under paragraph
(c) above if the Board of HM Revenue & Customs has given (and not revoked)
a direction in respect of that U.K. Non-Bank Lender under section 931 of the
Income Tax Act 2007 (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.


 


62

















 


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


 


17.2        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 17.1(c) (Tax gross-up); or


 


(ii)           would have been compensated
for by an increased payment under Clause 17.1(c) (Tax gross-up) but was
not so compensated because an exclusion set out in Clauses 17.1(d), (f) or
(j) (Tax gross-up) applied.


 


(d)           A Finance Party
making, or intending to make, a claim under Clause 17.1(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.


 


17.3        Tax
Credit


 


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


 


(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.


 


17.4        Stamp
taxes


 


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


 


 


63

















 


 


(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.


 


17.5        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)           Where a Finance
Document requires any Party to reimburse a Finance Party for any costs or
expenses, that Party must also at the same time pay and indemnify the Finance
Party against all value added tax incurred by the Finance Party in respect of
those costs or expenses but only to the extent that Finance Party (acting
reasonably) determines that it is not entitled to credit or repayment from the
relevant tax authority in respect of the Tax.


 


17.6        Provisional
Treaty Relief Scheme


 


(a)           Each Treaty
Lender on and after the date it becomes a 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 Loan (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 the HM Revenue & Customs under the PTR Scheme being withdrawn.


 


(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.


 


64

















 


(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
Loan 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.


 


18.          INCREASED COSTS


 


18.1        Increased
Costs


 


Except as
provided below in this Clause 18, 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.


 


18.2        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 18;


 


(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.


 


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18.3        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.


 


19.          MITIGATION


 


19.1        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.


 


19.2        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.


 


20.          PAYMENTS


 


20.1        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 an Agent) under the Finance Documents must be
made to the relevant Agent to its account at such office or bank:


 


(a)           in the principal financial
centre of the country of the relevant currency; or


 


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(b)           in the case of Euro, in the principal
financial centre of a Participating Member State or London,


 


as it may notify
to that Party for this purpose by not less than five Business Days’ prior
notice.


 


20.2        Funds


 


Payments under
the Finance Documents to an Agent must be made for value on the due date at
such times and in such funds as the 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.


 


20.3        Distribution


 


(a)           Each payment
received by an Agent under the Finance Documents for another Party must, except
as provided below, be made available by the Agent to that Party by payment (as
soon as practicable after receipt) to its account with such office or bank:


 


(i)            in the principal
financial centre of the country of the relevant currency; or


 


(ii)           in the case of
Euro, in the principal financial centre of a Participating Member State or
London,


 


as it may notify
to the Agent for this purpose by not less than five Business Days’ prior notice
or, in the case of any amount received by an Agent for Imperial Finance and
representing the proceeds of a drawing under the Swingline Facility, the
Swingline Proceeds Account.


 


(b)           Each 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 an Agent under this Agreement for another Party, the Agent is not
obliged to pay that sum to that Party until it has established that it has
actually received it. However, an 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 Agent, that Party must immediately on demand by the 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 Agent at a rate
calculated by the Agent to reflect its cost of funds.


 


20.4        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 Euros.


 


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20.5        No
set-off or counterclaim


 


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


 


20.6        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.


 


20.7        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 20.7 will override any appropriation made by an Obligor.


 


20.8        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.


 


20.9        Good
discharge


 


Without prejudice
to any other term of this Agreement, any payment by an Obligor to an Agent in
accordance with this Clause 20 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 an Agent fails for any reason to make the
corresponding payment to that Lender.


 


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21.          GUARANTEE AND INDEMNITY


 


21.1        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.


 


21.2        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.


 


21.3        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 21 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.


 


21.4        Waiver
of defences


 


The obligations
of each Guarantor under this Clause 21 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 21 (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;


 


69

















 


(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.


 


21.5        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 21.


 


21.6        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 21:


 


(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 21.


 


21.7        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 21:


 


(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 21;


 


(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.


 


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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 21 or in accordance with any directions
given by the Facility Agent under this Clause 21.


 


21.8        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.


 


21.9        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.


 


22.          REPRESENTATIONS


 


22.1        Representations


 


Imperial makes
the representations and warranties set out in this Clause 22 to each
Finance Party on the date of this Agreement.


 


22.2        Status


 


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


 


22.3        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.


 


22.4        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.


 


22.5        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.


 


22.6        No
default


 


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


 


71

















 


(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.


 


22.7        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.


 


22.8        Information


 


(a)           The factual information relating to the
Group contained in the Information Memorandum was to the best of the knowledge,
information and belief of the directors of Imperial, having made due and
careful enquiries, true and accurate in all material respects as at the date it
was provided or as at the date (if any) at which it is stated.


 


(b)           All financial projections in the
Information Memorandum ascribed to Imperial were prepared by Imperial based on
assumptions considered in good faith by the directors of Imperial to be
reasonable as at the date of preparation.


 


(c)           Nothing has been omitted from the
Information Memorandum that results in the information contained in the
Information Memorandum being untrue or misleading in any material respect.


 


(d)           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 or if
a date of preparation of that information is stated on the information, the
date so stated, true and accurate in all material respects.


 


22.9        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.


 


22.10      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.


 


22.11      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


 


72

















 


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 23.10
(Negative pledge).


 


22.12      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.


 


22.13      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.


 


22.14      Competition
Analysis


 


To the best of
the knowledge of Imperial, as at the date of this Agreement all information
contained in the Competition Analysis is true and accurate in all material
respects.


 


22.15      Times
for making Representations


 


(a)           The
representations set out in this Clause 22 (Representations) (other than
paragraphs (a) to (c) (inclusive) of Clause 22.8 (Information) are made by
Imperial on the date of this Agreement.


 


(b)           The
representations set out in paragraphs (a) to (c) (inclusive) of Clause 22.8
(Information) are made by Imperial on the date of the Information Memorandum.


 


(c)           With the
exception of those matters set out in Clauses 22.6 (No default) to 22.14
(Competition Analysis) inclusive, each representation set out in this
Clause 22 (Representations) is deemed to be repeated by Imperial on the
date of each Request, the first day of each Term and on the date falling six
months after the issue of the first Aval under this Agreement unless the First
Cash Utilisation Date has occurred prior to that date, in each case with
reference to the facts and circumstances then existing.


 


23.          UNDERTAKINGS


 


23.1        Duration


 


The undertakings
in this Clause 23 (Undertakings) remain in force from the date of this
Agreement for so long as any amount is or may be outstanding under this
Agreement.


 


23.2        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


 


73

















 


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 the relevant statutory period for
preparation 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 to the accounts):


 


(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:


 


(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 the
Obligors and the Lenders in the same position as they would have been in if the
change had not happened. Any agreement between the Obligors 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.


 


23.3        Information
- Miscellaneous


 


Imperial shall:


 


74
















 


(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 except to the extent
Imperial is prevented from doing so by any law or regulation or confidentiality
undertaking binding on it;


 


(c)           promptly upon becoming aware
of them, supply to the Facility Agent the details of any litigation,
arbitration, competition 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;


 


(d)           promptly
upon becoming aware of them, supply to the Facility Agent the details of any
fine levied on any member of the Group by a competition authority in relation
to the acquisition of Tiger Shares which is reasonably likely to have a
Material Adverse Effect;


 


(e)           promptly, upon it becoming aware of the same, notify
the Facility Agent of the publication or withdrawal of any revised long term
credit rating assigned to Imperial by either Moody’s or S&P (or any
substitute statistical ratings agency that the Facility Agent and Obligors’
Agent have agreed to refer to for the purposes of this Agreement); and


 


(f)            promptly
upon it becoming aware of the same, notify the Facility Agent of any
information received by it which would render the information contained in the
Competition Analysis inaccurate in any material respect.


 


23.4        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.


 


23.5        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 (including a Replacement Lender) to
carry out and be satisfied with the results of all applicable know your
customer requirements.


 


(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.


 


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(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.


 


23.6        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 23.2(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 with each set of financial statements of the Group
delivered to it under Clause 23.2(a)(i) (Financial Information) only 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.


 


23.7        Authorisations


 


Each Obligor
shall promptly:


 


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


 


(b)           (if the Facility Agent so
requests) 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.


 


23.8        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.


 


23.9        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.


 


23.10      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;


 


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(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;


 


(ix)           any Security
Interest arising as a result of a Permitted Securitisation;


 


(x)            any Security
Interest entered into pursuant to Clause 1.3 (Avales); and


 


(xi)           any Security
Interest (other than any Security Interests permitted by paragraphs (i) to (x)
above) securing indebtedness not exceeding in aggregate €250,000,000 (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 Agreement shall automatically and
immediately be secured upon the same assets, ranking at least pari passu with the other obligations secured on those
assets.


 


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23.11      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 23.11 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 except:


 


(a)           where 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; or


 


(b)           under or in connection with
a Permitted Securitisation.


 


23.12      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 save
as a result of a Permitted Reorganisation.


 


23.13      Merger


 


No Obligor shall
enter into any amalgamation, demerger, merger or corporate reconstruction
without the prior approval of the Majority Lenders save as a result of a
Permitted Reorganisation.


 


23.14      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.


 


23.15      Financial
Indebtedness


 


(a)           Imperial shall
procure that the aggregate principal amount of outstanding Financial
Indebtedness of the Group does not exceed:


 


(i)            from the date of
this Agreement to the earlier of:


 


(A)          1 November 2009;
and


 


(B)           the second
anniversary of the Closing Date,


 


€750,000,000 (or
equivalent); and


 


(ii)           thereafter,
€500,000,000 (or equivalent).


 


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


 


(i)            of the Obligors;


 


(ii)           incurred by the
Issuer or any member of the Group (any such member of the Group being an Issuing Company) under any issue of
securities (other than any issue under a Tiger Bond Document) in the debt
capital markets the Net Proceeds of which are lent directly or indirectly by
the Issuer or an Issuing Company to an Obligor;


 


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(iii)          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 or
payment under the MSA which is or may become due from any member of the Group
in the ordinary course of its business;


 


(iv)          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;


 


(v)           incurred under
any Permitted Securitisation;


 


(vi)          incurred under
any Dirham Facility Document; or


 


(vii)         incurred under
any Tiger Bond Document.


 


23.16      The
Issuer


 


Imperial shall
procure that the Issuer or an Issuing Company 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 any indebtedness permitted under
Clause 23.15 (Financial Indebtedness);


 


(ii)           any receivable
owed to the Issuer or Issuing Company by an Obligor (either directly or
indirectly) resulting from a loan referred to in Clause 23.15(b)(ii)
(Financial Indebtedness) and any liability for Tax incurred by the Issuer or an
Issuing Company in respect of interest on any such loan; and


 


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


 


24.          OFFER COVENANTS


 


24.1        Compliance
in connection with the Offer and Delisting Offer


 


(a)           Imperial must
comply in all material respects with:


 


(i)            all laws and
regulations relevant in the context of the Offer and Delisting Offer including
the Law 24/1998 of July 28 on the Securities Market (as amended) as developed
by Spanish Royal Decree 1197/1991 (dated 26 July 1991) on Public Tender Offers
(as amended), as replaced or substituted by any other applicable regulations on
public tender offers; and


 


(ii)           the Offer
Document and any Delisting Offer Document where failure to do so would have a
material adverse effect on the business, assets or financial condition of the
Group and the Tiger Group (taken as a whole).


 


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(b)           Notwithstanding
paragraph (a)(i) above and Clause 24.3(a)(i) (Amendments and waivers), Imperial
may close the Offer without receiving competition clearances in the
jurisdictions referred to in the Competition Analysis provided that in the case
of those jurisdictions (other than Armenia and Azerbaijan) Imperial will use
reasonable endeavours to obtain the competition clearances including (without
limitation) by ensuring that all the relevant filings have been made and
applications lodged in such jurisdictions prior to the Closing Date.


 


24.2        Offer
information


 


The Obligors’
Agent must promptly supply to the Facility Agent:


 


(a)           copies of the Offer Document
and Delisting Offer Document;


 


(b)           notification of any
amendment to any Offer Document and Delisting Offer Document;


 


(c)           notification of any waiver
of any condition of or any referral in relation to the Offer and Delisting
Offer; and


 


(d)           any other information
regarding the progress of the Offer and Delisting Offer 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 confidentiality undertaking binding on it.


 


24.3        Amendments
and waivers


 


(a)           Save as permitted
under Clause 24.4 (Level of acceptances), Imperial must not, without the prior
written consent of the Majority Lenders, waive or amend:


 


(i)            any condition of
the Offer and Delisting Offer in any respect which would have a material
adverse effect on the business, assets or financial condition of the Group and
Tiger Group (taken as a whole);


 


(ii)           the condition of
the Offer that a general meeting of the shareholders of Tiger is held resolving
to amend Article 24 of the bye-laws of Tiger before the date on which the Offer
acceptance period ends in order to remove the limitation to the votes that each
shareholder of Tiger may cast at a general shareholders meeting of Tiger; and


 


(iii)          any condition of
the Offer that a general meeting of the shareholders of Imperial is held
resolving to increase Imperial’s share capital by an amount sufficient for the
Rights Issue, approving the allotment of shares and approving the Acquisition
as a Class 1 transaction.


 


(b)           Paragraph (a)
will not prohibit the addition of any new condition to the Offer or the
Delisting Offer.


 


24.4        Level
of acceptances


 


Imperial must
procure that the minimum acceptance level in respect of the Offer is not waived
unless notwithstanding such waiver Imperial will acquire beneficially more than
fifty per cent. (50%) of the issued share capital of Tiger pursuant to the
Offer.


 


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24.5        Return
of Avales


 


(a)           The day after the
Offer or Delisting Offer (as appropriate) is settled or lapses for any reason
Imperial shall issue a request or shall procure the subsidiary making the Offer
or Delisting Offer (as appropriate) issues a request to the CNMV that each Aval
is released to the relevant Issuing Entity.


 


(b)           If Imperial
receives an Aval from the CNMV it will deliver the relevant Aval to the
Facility Agent or relevant Issuing Entity as soon as possible.


 


24.6        Equity
Documents


 


Imperial will:


 


(a)           not amend or waive any term
of any Underwriting Agreement or permit any reduction in the amount of any
underwriting under any Underwriting Agreement or substitute any Underwriting
Agreement in each case in a manner or to an extent which would materially and
adversely prejudice the interests of the Finance Parties under the Finance
Documents save as a result of any repayment or prepayment of the Equity Bridge
Facility Agreement constituting a Permitted Bridge Payment;


 


(b)           not refinance the Equity
Bridge Facility Agreement on terms which are less favourable to the Lenders as
regards subordination than the Equity Bridge Facility Agreement; and


 


(c)           use reasonable endeavours to
procure the fulfilment of the conditions set out in Clause 2.1 of the Back-Stop
Underwriting Agreement.


 


24.7        Demand
in respect of Avales


 


If the CNMV makes a demand (in whole or in part) in respect of an Aval
issued under this Agreement, Imperial will make, or will procure there is made,
a utilisation of the facilities under the Equity Bridge Facility Agreement and
corresponding prepayment of the Facilities to the extent necessary to ensure
that, following such utilisation and any related prepayment of the Facilities,
the proportion of the facilities made available under the Equity Bridge
Facility Agreement utilised by way of loan is at least equal to the proportion
of the Facilities utilised by way of Loan.


 


24.8        Posting of the Circular


 


Imperial will or will procure that the Circular is posted within seven
days of the date of this Agreement.


 


25.          FINANCIAL COVENANTS


 


25.1        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.


 


25.2        Gearing


 


Imperial shall
ensure that the ratio of Consolidated Total Net Borrowings to Consolidated
EBITDA:


 


(a)           at the end of each
Measurement Period ending on or after 1 March 2007 but before 1 November 2009
does not, for that Measurement Period, exceed 4.50:1; and


 


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(b)           at the end of each
Measurement Period ending on or after 1 November 2009 does not, for that
Measurement Period, exceed 4.00:1.


 


25.3        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.


 


25.4        Testing
of Financial Covenants


 


The financial
covenants set out in this Clause 25 (Financial Covenants) shall not be tested
until the end of the Measurement Period beginning on or after the Closing Date.


 


26.          DEFAULT


 


26.1        Events
of Default


 


Each of the
events and circumstances set out in this Clause 26 is an Event of Default.


 


26.2        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.


 


26.3        Breach
of Financial Covenant


 


(a)           Imperial is in
breach of its obligations under Clause 25.3 (Interest cover).


 


(b)           Imperial is in
breach of its obligations under Clause 25.2 (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 23.2
(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 Business Days), the Facility Agent (after consultation with
the Obligors’ Agent and the Lenders) may specify another page or service
displaying the appropriate rate.


 


Imperial shall
supply to the Facility Agent details of the currency translation criteria
applied for the purpose of this Clause 26.3 together with each Compliance
Certificate under Clause 23.6 (Compliance Certificates).


 


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26.4        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 26.2
(Non-payment) or Clause 26.3 (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.


 


26.5        Misrepresentation


 


Any
representation or statement made by Imperial in this Agreement, any request or
any information provided pursuant to Clause 23.3 (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.


 


26.6        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 50,000,000 (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 ten Business Days after becoming
due or being declared due and payable prior to its specified maturity (subject
to any originally applicable grace period).


 


26.7        Insolvency


 


A Material
Company:


 


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


 


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(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.


 


26.8        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 50,000,000 (or equivalent)) of its assets or under Title 11 of the
United States of America Code entitled Bankruptcy (or any successor thereto or
amendment thereof), 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 as a result of a Permitted Reorganisation; 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.


 


26.9        Creditors’
process


 


Any attachment,
sequestration, distress or execution affects all or any part (such part having
an aggregate value of at least Euro 50,000,000 (or equivalent)) of the assets
of a Material Company and is not discharged within 30 days.


 


26.10      Guarantee


 


Any guarantee
given pursuant to Clause 21 (Guarantee
and Indemnity) is not effective, or is alleged by the relevant
Guarantor to be ineffective, for any reason.


 


26.11      Ownership
of the Obligors


 


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


 


26.12      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.


 


26.13      Repudiation


 


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


 


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26.14      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 or as a result of a Permitted Reorganisation.


 


26.15      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 governmental or regulatory
investigations, proceedings or disputes are finally determined and such
determination has a Material Adverse Effect.


 


(c)           Any action is
taken by a competition authority against any member of the Group or any fine is
levied on any member of the Group by a competition authority in each case in
relation to the acquisition of Tiger Shares which is finally determined and
such determination has a Material Adverse Effect.


 


26.16      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 Aval is immediately due and payable.


 


26.17      Clean-up
Period


 


Notwithstanding any other term of this Agreement any
event or circumstance which is in existence on the Closing Date or one month
thereafter 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 Default or Event of
Default results from a default under or in respect of the existing Financial
Indebtedness of Tiger or Tiger Group caused by a change of control occurring as
a result of the Offer; or


 


(b)           such event or circumstance:


 


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(i)            relates solely to Tiger and
its Subsidiaries; and


 


(ii)           has not been procured,
solicited or approved by any member of the Group (which for these purposes
shall not include the Tiger Group).


 


27.          THE ADMINISTRATIVE PARTIES


 


27.1        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 (other than the U.S. Dollar Swingline Agent) irrevocably appoints the
U.S. Dollar Swingline Agent to act as its agent under the Finance
Documents.


 


(c)           Each Finance
Party irrevocably authorises each 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 that Agent.


 


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


 


27.2        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.


 


27.3        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.


 


27.4        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 member of the Group (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 member of the Group.


 


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27.5        Reliance


 


Each 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;


 


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


 


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


 


27.6        Majority
Lenders’ instructions


 


(a)           Each 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,
each Agent may act as it considers to be in the best interests of all the
Lenders.


 


(b)           No Agent is
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)           Each 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.


 


27.7        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.


 


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27.8        Exclusion
of liability


 


(a)           No Agent is
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 any Agent in respect
of any claim it might have against that 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 an Agent may rely on this
Clause 27.8 and enforce its terms under the Contracts (Rights of Third
Parties) Act 1999.


 


(c)           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.


 


(d)           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.


 


27.9        Default


 


(a)           No Agent is
obliged to monitor or enquire whether a Default has occurred. No Agent is
deemed to have knowledge of the occurrence of a Default.


 


(b)           If any 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.


 


27.10      Information


 


(a)           Each 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, no Agent is obliged to review
or check the adequacy, accuracy or completeness of any document it forwards to
another Party.


 


(c)           Except as
provided above, no Agent has any 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 member of the Group 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.


 


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


 


(e)           No Agent is
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.


 


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


 


27.11      Indemnities


 


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


 


(b)           Each 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.


 


27.12      Compliance


 


Each 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.


 


27.13      Resignation
of an Agent


 


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


 


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


 


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


 


(d)           The person(s)
appointing a successor 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 each Agent must be capable of performing it’s
obligations under this Agreement. Any successor U.S. Dollar Swingline
Agent must have an office in New York.


 


(e)           The resignation
of an Agent and the appointment of any successor Agent will both become
effective only when the successor Agent notifies all the Parties that it
accepts its appointment. On giving the notification, the successor Agent will
succeed to the position of the Agent which it succeeds and the term Facility  Agent or U.S. Dollar Swingline Agent, as the case may be, will mean
the successor Agent.


 


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


 


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(g)           Upon its
resignation becoming effective, this Clause 27 (The Administrative
Parties) will continue to benefit the retiring Agent in respect of any action
taken or not taken by it in connection with the Finance Documents while it was
an 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 an Agent, require it to resign under paragraph (b)
above.


 


27.14      Relationship
with Lenders


 


(a)           Each 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 without any cost to the Borrower, 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.


 


27.15      Agents’
management time


 


If an Agent
requires, any amount payable to that Agent by any Party under any indemnity or
in respect of any costs or expenses incurred by that 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 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 Agent under any other term of the Finance Documents.


 


27.16      Notice
period


 


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


 


28.          EVIDENCE AND CALCULATIONS


 


28.1        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.


 


28.2        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.


 


28.3        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 (acting reasonably) determines
is market practice.


 


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29.          FEES


 


29.1        Agent’s
fee


 


The Obligors’
Agent must pay to the Facility Agent for the account of the Facility Agent and
the account of the U.S. Dollar Swingline Agent 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.


 


29.2        Arrangement
fee


 


The Obligors’
Agent must pay to the Facility Agent for the account of each of the Mandated
Lead Arrangers and the Swingline Lenders 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 Swingline Lenders and the Obligors’ Agent.


 


29.3        Commitment
fee


 


(a)           The Obligors’
Agent must pay in respect of the each Term Loan and Revolving Credit Facility a
commitment fee computed at the rate per annum equal to the percentage of the
applicable Margin set out opposite the relevant Facility in the table below on
the undrawn, uncancelled amount of each Lender’s Term Loan Commitment or
Revolving Credit Commitment (as applicable) in the currency of the applicable
Facility.


 


	
  Facility

  	
   

  	
  Commitment Fee

  
	
  A Term Loan
  Facility

  	
   

  	
  25 per cent.

  
	
  B Term Loan
  Facility

  	
   

  	
  30 per cent.

  
	
  C Term Loan
  Facility

  	
   

  	
  30 per cent.

  
	
  Revolving
  Credit Facility

  	
   

  	
  30 per cent.

  



 


(b)           During the
Availability Period in respect of the Swingline Facility commencing on the date
of this Agreement the Obligors’ Agent must pay a commitment fee computed at the
rate per annum equal to 25 per cent. of the Margin for the Swingline
Facility on the undrawn, uncancelled amount of the Swingline Commitment of each
Lender which is a Swingline Lender on the date of this Agreement.


 


(c)           During each
Swingline Extension Period the Obligors’ Agent must pay a commitment fee on the
undrawn, uncancelled amount of the Swingline Commitments of each Swingline
Lender computed at the rate notified to the Obligors’ Agent in accordance with
Clause 8.4(f) (Swingline Facility Extension Option).


 


(d)           Accrued
commitment fee is payable to the Facility Agent on the later of the date
falling 90 days after the date of this Agreement and the date falling five
Business Days after the Obligors’ Agent receives from the Facility Agent an
invoice for such amount and thereafter quarterly in arrear on the later of the
last day of the relevant quarter and the date falling five Business Days after
the Obligors’ Agent receives from the Facility Agent an invoice for such amount.
Accrued commitment fee is also payable to the Facility Agent for a Lender on
the later of the date its Term Loan Commitment, Revolving Credit Commitment or
its Swingline Commitment is cancelled in full and the date falling five
Business Days after the Obligors’ Agent receives from the Facility Agent an
invoice for such amount.


 


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29.4        Fees
in respect of Avales


 


(a)           The Obligors’
Agent must pay to each Issuing Entity the fees in respect of each Aval
requested by it in the manner agreed in the Fee Letter between the Mandated
Lead Arrangers and the Obligors’ Agent.


 


(b)           The Obligors’
Agent must pay to the Facility Agent for each Lender a fee (the Aval Fee) computed at the rate of 0.5 per cent. per annum on
the outstanding amount of each Aval issued under this Agreement (except to the
extent such Aval is repaid, prepaid or cancelled) in respect of the period from
the Utilisation Date for that Aval until the relevant Aval Release Date.


 


(c)           The fee accrued
under paragraph (b) above is payable quarterly in arrear on the later of the
date falling three months after the first Utilisation Date in respect of each
Aval (and each date falling three months after the previous such payment) and
the date falling five Business Days after the date on which the Obligors’ Agent
has received from the Facility Agent an invoice for such amount. The accrued
amount of such 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 the relevant Aval is prepaid or repaid
in full on the later of the date on which such cancellation, prepayment or
repayment becomes effective and the date falling five Business Days after the
date on which the Obligors’ Agent has received from the Facility Agent an
invoice for such amount.


 


29.5        Extension
Fee


 


If the Obligors’ Agent exercises the Extension
Option it will pay to the Facility Agent for the Lenders in respect of the
A Term Loan Facility on the later of the Original A Term Loan
Maturity Date and the date falling five Business Days after the Obligors’ Agent
receives from the Facility Agent an invoice for such amount, an extension fee
equal to 0.05 per cent. of the amount of the A Term Loan Facility
extended on that date in the currency of that Facility.


 


29.6        Swingline
Facility Extension Fee


 


If Imperial
Finance exercises the Swingline Facility Extension Option, on each relevant
Swingline Extension Date Imperial Finance will pay to the Facility Agent for
the Swingline Lenders acquiring a Swingline Commitment beyond the relevant
Swingline Extension Date on the later of that date and the date falling five
Business Days after the Obligors’ Agent receives from the Facility Agent an
invoice for such amount an extension fee equal to 0.025 per cent. of the
Swingline Commitments extended on that date.


 


29.7        Uncommitted
facility fees


 


Imperial Finance
must pay to the Facility Agent for the account of a Lender any fee specified in
an offer in respect of a Commitment under the Uncommitted Facility which
Imperial Finance accepts under Clause 10.3 (Offer and Acceptance) in
accordance with the payment terms set out in that offer on the date falling
five Business Days after the date on which the Obligors’ Agent receives from
the Facility Agent an invoice for such amount.


 


29.8        VAT


 


(a)           Any fee referred
to in this Clause 29 (Fees) is exclusive of any value added tax or any
similar tax which might be chargeable in connection with that fee. If any value
added tax or other tax is so chargeable, it shall, subject to paragraph (b)
below, be paid by the Obligors’ Agent or Imperial Finance (as appropriate) at
the same time as it pays the relevant fee.


 


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(b)           If any invoice
for an amount payable under this Agreement includes value added tax the Party
to whom such amount is payable shall provide the Obligors’ Agent or Imperial
Finance (as appropriate) with an appropriate value added tax invoice.


 


30.          INDEMNITIES AND BREAK COSTS


 


30.1        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.


 


(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.


 


30.2        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 Loan not being made or
an Aval not being issued after a Request has been delivered for that Loan or
Aval; or


 


(iv)          a Loan (or part
of a Loan) 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 Loan.


 


(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 under any Finance Document which the Facility Agent reasonably
believes to be genuine, correct and appropriately authorised.


 


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30.3        Break
Costs


 


(a)           The Obligors’
Agent must pay to each Lender its Break Costs on the date falling five Business
Days after the date on which the Obligors’ Agent receives from the Facility
Agent an invoice for such amount.


 


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


 


(i)            the interest
(excluding the Margin) which that Lender would have received for the period
from the Business Day on which it receives 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 on which it receives any part
of its share in a Loan or overdue amount 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 30.3 and the calculation of
that amount.


 


31.          EXPENSES


 


31.1        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 such costs and expenses to be
payable five Business Days after the date on which the Obligors’ Agent receives
from the Facility Agent an invoice for such amount.


 


31.2        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,


 


such costs and
expenses to be payable five Business Days after the date on which the Obligors’
Agent receives from the Facility Agent an invoice for such amount.


 


31.3        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.


 


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32.          AMENDMENTS AND WAIVERS


 


32.1        Procedure


 


(a)           Except as
provided in this Clause 32, 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 32.


 


(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.


 


32.2        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
(other than under the Extension Option or Swingline 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 an
Obligor;


 


(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 32.2,


 


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.


 


32.3        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.


 


32.4        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


 


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(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.


 


33.          CHANGES TO THE PARTIES


 


33.1        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.


 


33.2        Assignments
and transfers by Lenders


 


(a)           A Lender (the Existing  Lender) may,
subject to the following provisions of this Clause 33.2, 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 a bank or
financial institution (a New  Lender).


 


(b)           The consent of
each Swingline Lender which has a Swingline Commitment at that time will be
required for any assignment or transfer of any Lender’s rights and obligations
under the C Revolving Credit Facility where the published long term credit
rating of the assignee or transferee is not equal to or higher than BBB in the
case of S&P and/or Baa2 in the case of Moody’s.


 


(c)           The Obligors’
Agent shall be notified by the Facility Agent of any assignment or transfer
(including by way of novation) by an Existing Lender of that Existing Lender’s
rights and obligations under the A Term Loan Facility, B Term Loan Facility or
C Term Loan Facility or any sub-participation in respect of the Facilities in
each case promptly on or before the occurrence of such assignment or transfer
or sub-participation. Each Lender shall promptly on or before entering into any
sub-participation in respect of the Facilities notify the Facility Agent of
such sub-participation.


 


(d)           The Obligors’
Agents prior written consent will be required for any assignment or transfer
(including by way of novation) by an Existing Lender of that Existing Lender’s
rights and obligations under any Revolving Credit Facility unless an Event of
Default is outstanding or the New Lender is another Lender or an affiliate of a
Lender (in which case the Obligors’ Agent will be notified by the Facility
Agent of such transfer promptly on or before the occurrence of that assignment
or transfer). Such consent will be sought promptly by the Facility Agent and is
not to be unreasonably withheld or delayed by the Obligors’ Agent where the New
Lender has a published long term credit rating equal or higher than BBB in the
case of S&P and/or Baa2 in the case of Moody’s and will be deemed to have
been given if no negative response is received by the Facility Agent within 12
Business Days of receipt by the Obligors’ Agent of the request for consent.


 


(e)           Unless the
Obligors’ Agent and the Facility Agent, (both 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 the Facilities of less than Euro 25,000,000 (or its equivalent).


 


(f)            Unless otherwise
agreed by each Issuing Entity, until the Final Release Date has occurred no
assignment or transfer of any Lender’s rights and obligations under the Term
Loan Facilities or the C Revolving Credit Facility may be effected unless:


 


(i)            the New Lender is
an Acceptable Transferee; or


 


(ii)           the New Lender
has provided cash cover in accordance with Clause 33.10 (Issuing Entity Cash
Cover) below to each Issuing Entity whose consent to such transfer has not been
obtained.


 


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(g)           The Facility
Agent is not obliged to execute a Transfer Certificate or approve any
confirmation in accordance with paragraph (h)(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.


 


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


 


(i)            the obligations
are novated in accordance with the following provisions of this Clause 33;
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.


 


(i)            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 Euro 1,500.


 


(j)            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.


 


33.3        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 33.2(g) (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:


 


(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.


 


33.4        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:


 


97

















 


(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 33; or


 


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


 


33.5        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.


 


33.6        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 3 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 33.6 (Additional Guarantors).


 


(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


 


98

















 


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.


 


33.7        Resignation
of a 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.


 


33.8        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 (with the prior
agreement of the Obligors’ Agent (acting reasonably)) appoint another Lender or
an Affiliate of a Lender to replace that Reference Bank.


 


33.9        Replacement
of a Lender


 


(a)           The Obligors’
Agent may, by giving written notice to the Facility Agent and a Relevant
Lender, require that Relevant Lender to transfer all of its rights and
obligations under this Agreement to a Replacement Lender.


 


(b)           On receipt of a
notice under paragraph (a) above the Relevant Lender must transfer all of its
rights and obligations under this Agreement:


 


(i)            in accordance
with Clause 33.2 (Assignments and transfers by Lenders);


 


(ii)           on the date
specified in the notice provided it is no earlier than five Business Days from
the date of the notice and no later than 10 Business Days from the date of
the notice;


 


(iii)          to the
Replacement Lender specified in the notice provided such Replacement Lender
meets the criteria set out in Clause 33.2 (Assignments and transfers by
Lenders); and


 


99

















 


(iv)          for a purchase
price equal to the aggregate of:


 


(A)          the Relevant
Lender’s participation in the outstanding Loans and any amount then due from
such Lender under the Avales;


 


(B)           any Break Costs
payable by the Relevant Lender as a result of the transfer; and


 


(C)           all accrued
interest, fees and other amounts payable to the Relevant Lender under this
Agreement as at the transfer date specified in the notice referred to at
subparagraph (ii) above.


 


(c)           The Obligors’
Agent’s right to replace a Non-Funding Lender is in addition to all other
rights and remedies available to the Obligors’ Agent against the Non-Funding
Lender.


 


(d)           The replacement
of a Lender pursuant to this Clause shall be subject to the following
conditions:


 


(i)            the Obligors’
Agent shall have no right to replace the Facility Agent;


 


(ii)           neither the
Facility Agent nor the Lender shall have any obligation to the Obligors’ Agent
to find a Replacement Lender;


 


(iii)          in the event of a
replacement of a Non-Consenting Lender such replacement must take place no
later than 45 days after the Non-Consenting Lender notifies the Obligors’ Agent
and the Facility Agent of its failure or refusal to agree to any consent,
waiver or amendment to the Finance Documents; and


 


(iv)          in no event shall
the Lender replaced under this Clause 33.9 be required to pay or surrender
to such Replacement Lender any of the fees received by such Lender pursuant to
the Finance Documents.


 


33.10      Issuing
Entity Cash Cover


 


(a)           If a New Lender
is not an Acceptable Transferee, the relevant New Lender will, as a condition
to any assignment or transfer to that New Lender pursuant to this Clause 33
taking effect, if so requested by an Issuing Entity deposit with each relevant
Issuing Entity (in such bank account at such bank as it shall promptly notify
to the Facility Agent from time to time for such purpose) an amount equal to,
and on account of, the maximum potential liability of such New Lender to that
Issuing Entity under Clause 7.2 (Lenders’ Indemnity).


 


(b)           If the higher of
the long term credit ratings assigned to a Lender and the long term credit
ratings assigned to any entity which provides a guarantee in respect of the
obligations of that Lender under Clause 7.2 (Lenders’ Indemnity) are not or
cease to be equal to or higher than A3 by Moody’s and A- by S&P, the
relevant Lender will, within three Business Days of request by an Issuing
Entity deposit with the relevant Issuing Entity (in such bank account at such
bank as it shall promptly notify to the Facility Agent from time to time for
such purpose) an amount equal to, and on account of, the maximum potential
liability of such New Lender to that Issuing Entity under Clause 7.2 (Lenders’
Indemnity).


 


(c)           Each Issuing
Entity shall be entitled to apply such deposit (by application of funds,
set-off, combination of accounts or otherwise as that Issuing Entity shall
determine) against amounts due to it from time to time from such New Lender
under Clause 7.2 (Lenders’ Indemnity) and the Issuing Entities will so apply
such amounts if directed to do so by the relevant Lender at any time after a
demand has been made under the relevant Aval.


 


100

















 


(d)           Any such deposit
shall be on terms that the Issuing Entities shall only be required to repay
such deposit to or to the order of such New Lender on the relevant Aval Release
Date (to the extent that such funds have not been applied in accordance with
Clause 33.10(c) above, or on compliance in full by such New Lender with its
obligations to the Issuing Entities under Clause 7.2 (Lenders’ Indemnity).


 


(e)           Any such deposit
shall be denominated in Euro and shall bear interest at a deposit rate
calculated on the aggregate amount of the deposit, on the basis of a year of
360 days for the actual number of days elapsed. Such interest shall be payable
(subject to deduction of Tax if so required by applicable law) by the Issuing
Entities to such New Lender quarterly in arrears (or as otherwise agreed) until
repayment of the deposit or application of the deposit by the Issuing Entities
against the obligations of such Lender to it under Clause 7.2 (Lenders’
Indemnity).


 


33.11      New Issuing Entities


 


(a)           At any time whilst there are no Avales issued and
outstanding by it under this Agreement an Issuing Entity (the Resigning Issuing Entity) may (with the prior consent of the
Facility Agent and the Obligors’ Agent) resign as an Issuing Entity, such
resignation to take effect on the date on which an Issuing Entity (other than
the Resigning Issuing Entity) confirms in writing to the Facility Agent and the
Obligors’ Agent that it will act as Issuing Entity in replacement of the
Resigning Issuing Entity and assume all the obligations of the Resigning
Issuing Entity or on which a bank or financial institution accedes as an
Issuing Entity in replacement of the Resigning Issuing Entity in accordance
with the provisions of paragraph (b) below.


 


(b)           A bank or financial institution may (with the prior
consent of the Facility Agent and the Obligors’ Agent) become an Issuing Entity
for the purposes of this Agreement when:


 


(i)            it delivers an Issuing Entity Accession Agreement to
the Facility Agent specifying the Issuing Entity which it is replacing;


 


(ii)           the Facility Agent notifies the other Finance Parties
and the Obligors’ Agent that the Issuing Entity Accession Agreement is in form
and substance satisfactory to it (acting reasonably); and


 


(iii)          the Facility Agent executes the Issuing Entity
Accession Agreement.


 


The Facility Agent must give this notification as soon as reasonably
practicable.


 


34.          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.


 


(b)           However, a
Finance Party is entitled to disclose Confidential Information:


 


(i)            which is publicly
available, other than as a result of a breach by that Finance Party of this
Clause 34;


 


(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;


 


101

















 


(v)           to its
professional advisers;


 


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


 


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


 


(c)           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 (as defined in the
Confidentiality Undertaking), it must enter into a Confidentiality Undertaking.


 


(d)           This
Clause 34 supersedes any previous confidentiality undertaking given by a
Finance Party in connection with this Agreement prior to it becoming a Party.


 


35.          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.


 


36.          PRO RATA SHARING


 


36.1        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:


 


(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 (if any) (the redistribution).


 


36.2        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.


 


102

















 


(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
redistribution.


 


36.3        Exceptions


 


Notwithstanding
any other term of this Clause 36, 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.


 


36.4        Loss
sharing


 


(a)           In this Clause 36.4 (Loss
sharing):


 


(i)            Outstandings means, in relation to a
Lender, its aggregate participation in each Loan from time to time; and


 


(ii)           Total Outstandings
means the aggregate of all Outstandings.


 


(b)           On
the date following the Final Release Date notified by the Facility Agent
pursuant to paragraph (c) below, each Lender shall (to the extent necessary) by
corresponding transfers adjust their participations in Loans then outstanding
to ensure that after such transfers the Outstandings of each Lender bear the
same proportion to the Total Outstandings as such Lender’s Commitment bears to
the Total Commitments, each as at the Final Release Date.


 


(c)           The
amount of any transfers required pursuant to this Clause 36.4 (Loss sharing)
shall be calculated by the Facility Agent on the Final Release Date and
promptly communicated to each Lender by the


 


103

















 


Facility Agent
together with the date, as determined by the Facility Agent, upon which such
transfers shall take place.


 


37.          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.


 


38.          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.


 


39.          NOTICES


 


39.1        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.


 


39.2        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, Imperial Tobacco Enterprise
Finance Limited, Imperial and Imperial Tobacco Limited for this purpose are:


 


Address:                               PO
Box 244 

Upton Road 

Southville

Bristol BS99 7UJ


 


Attention:                             John
Jones, Group Treasurer


 


Phone number:                     0117 963 6636


 


104

















 


Fax number:                          0117 966 7957


 


(c)           The contact
details of the Facility Agent for this purpose are:


 


(i)            for operational
matters (such as drawdowns, interest rate fixing, interest/fee calculations and
payments)


 


Address:                                The
Royal Bank of Scotland plc


Level 3


2 1⁄2 Devonshire Square


London


EC2M 4XJ


 


Attention:                              Loans
Administration/LAU


 


Fax Number:                          020 7615 7673


 


(ii)           for non
operational matters (such as documentation, covenant compliance, amendments and
waivers)


 


Address:                                The
Royal Bank of Scotland plc


Level 7


135 Bishopsgate


London


EC2M 3UR


 


Attention:                              Mark
Harrison, Director, Syndicated Loans Agency


 


Phone Number:                     020 7085 3808


 


Fax Number:                          020 7085 4564


 


(d)           The contact
details of the U.S. Dollar Swingline Agent are:


 


Address:                                                The
Royal Bank of Scotland


101 Park Avenue


New York


New York 10178


USA


 


Attention:                                              Matthew Wilson, Head of Loan Markets Agency


 


Phone Number:                                     00 1 212 401 1412


 


Fax Number:                                          00 1 212 401 1478


 


(e)           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.


 


(f)            Where a Party
nominates a particular department or officer to receive a communication, a
communication will not be effective if that communication fails to specify the
department or officer so nominated provided that if a communication in
connection with a Finance Document is delivered to the Facility Agent at either
address set out in sub-paragraph (c) above but that communication


 


105

















 


should have been provided to the alternative address
set out in sub-paragraph (c) above, the Facility Agent will promptly upon
receipt of that communication forward it to the correct address.


 


39.3        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-Business 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 Business Day in that place.


 


(c)           A communication
to the Facility Agent will only be effective on actual receipt by it.


 


39.4        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.


 


(c)           Each Obligor
(other than the Obligors’ Agent) irrevocably appoints the Obligors’ Agent to act
as its agent and irrevocably authorises the Obligors’ Agent:


 


(i)            to give and
receive all communications under the Finance Documents;


 


(ii)           to supply all
information concerning itself to any Finance Party; and


 


(iii)          to 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.


 


39.5        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.


 


40.          LANGUAGE


 


(a)           Any notice given
in connection with a Finance Document must be in English.


 


106
















 


(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.


 


41.          GOVERNING LAW


 


This Agreement is
governed by English law.


 


42.          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 42 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.


 


43.          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.


 


107

















 


SCHEDULE 1


 


ORIGINAL PARTIES


 


PART 1


 


MANDATED LEAD ARRANGERS


 


BANCO SANTANDER CENTRAL HISPANO SA.


 


BARCLAYS CAPITAL


 


CITIGROUP GLOBAL
MARKETS LIMITED



LEHMAN BROTHERS INTERNATIONAL (EUROPE)


 


THE ROYAL BANK OF
SCOTLAND PLC


 


108

















 


PART 2


 


ORIGINAL LENDERS


 


	
  Name of Original Lender

  	
   

  	
  A Term Loan

  Commitments

  	
   

  	
  B Term Loan

  Commitments

  	
   

  	
  C Term Loan

  Commitments

  	
   

  	
  A Revolving

  Credit

  Commitments

  	
   

  	
  B Revolving

  Credit

  Commitments

  	
   

  	
  C Revolving

  Credit

  Commitments

  	
   

  
	
   

  	
   

  	
  (Euro)

  	
   

  	
  (Euro)

  	
   

  	
  (Euro)

  	
   

  	
  (U.S. Dollars)

  	
   

  	
  (Sterling)

  	
   

  	
  (Euro)

  	
   

  
	
  Banco Santander Central Hispano S.A., London branch

  	
   

  	
  700,000,000

  	
   

  	
  600,000,000

  	
   

  	
  120,000,000

  	
   

  	
  400,000,000

  	
   

  	
  130,000,000

  	
   

  	
  800,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Barclays
  Bank PLC

  	
   

  	
  700,000,000

  	
   

  	
  600,000,000

  	
   

  	
  120,000,000

  	
   

  	
  400,000,000

  	
   

  	
  130,000,000

  	
   

  	
  800,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Citibank,
  N.A., London Branch

  	
   

  	
  700,000,000

  	
   

  	
  600,000,000

  	
   

  	
  120,000,000

  	
   

  	
  400,000,000

  	
   

  	
  130,000,000

  	
   

  	
  800,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lehman
  Brothers Holdings, Inc.

  	
   

  	
  700,000,000

  	
   

  	
  120,000,000

  	
   

  	
  120,000,000

  	
   

  	
  400,000,000

  	
   

  	
  130,000,000

  	
   

  	
  800,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lehman
  Loan Funding, LLC

  	
   

  	
  —

  	
   

  	
  480,000,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The
  Royal Bank of Scotland plc

  	
   

  	
  700,000,000

  	
   

  	
  600,000,000

  	
   

  	
  120,000,000

  	
   

  	
  400,000,000

  	
   

  	
  130,000,000

  	
   

  	
  800,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  3,500,000,000

  	
   

  	
  3,000,000,000

  	
   

  	
  600,000,000

  	
   

  	
  2,000,000,000

  	
   

  	
  650,000,000

  	
   

  	
  4,000,000,000

  	
   

  



 


	
  Name of Swingline Lender

  	
   

  	
  Swingline Commitments

  	
   

  
	
   

  	
   

  	
  (Euro)

  	
   

  
	
  Banco
  Santander Central Hispano, S.A. London Branch

  	
   

  	
  100,000,000

  	
   

  
	
  Barclays
  Bank PLC

  	
   

  	
  100,000,000

  	
   

  
	
  Citibank,
  N.A., London Branch

  	
   

  	
  100,000,000

  	
   

  
	
  Lehman
  Brothers Holdings, Inc.

  	
   

  	
  100,000,000

  	
   

  
	
  The
  Royal Bank of Scotland plc

  	
   

  	
  100,000,000

  	
   

  
	
  Total

  	
   

  	
  500,000,000

  	
   

  



 


109

















 


PART 3


 


ISSUING ENTITIES


 


 


	
  Name of Issuing Entity

  	
   

  	
  Percentage

  	
   

  
	
  Banco Santander Central Hispano S.A.

  	
   

  	
  20

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Barclays
  Bank PLC

  	
   

  	
  20

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Citibank
  International plc, Sucursal en España

  	
   

  	
  20

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The Royal Bank of Scotland plc

  	
   

  	
  20

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Lehman
  Issuing Entity

  	
   

  	
  20

  	
   

  



 


110

















 


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 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 Competition Analysis.


 


(c)           A
copy of the Original Financial Statements.


 


(d)           A
duly executed Fee Letter.


 


(e)           A
duly executed Syndication Letter.


 


(f)            A
copy of the duly executed Equity Bridge Facility Agreement.


 


(g)           A copy
of the duly executed Back-Stop Underwriting Agreement.


 


(h)           A
copy of the agreed form Class 1 circular to be issued by Imperial to its
shareholders.


 


(i)            A
copy of any waivers under the Existing Facilities Agreement in order to avoid
an event of default occurring under that agreement as a result of the issue of
the Avales.


 


(j)            Evidence
that the facilities under the Equity Bridge Facility Agreement have been or
will be simultaneously drawn in full by way of Avales issued by the issuing
entities under the Equity Bridge Facility Agreement.


 


(k)           Evidence
that resolutions increasing the share capital of Imperial by an amount
sufficient for the Rights Issue, approving the allotment of shares pursuant to
the Rights Issue and approving the Acquisition as a Class 1 transaction:


 


111

















 


(i)            if
not a condition of the Offer, have been obtained; or


 


(ii)           if a
condition of the Offer, are the subject of an extraordinary general meeting of
the shareholders of Imperial to be convened and that the board of directors of
Imperial is recommending that such resolutions are passed.


 


112

















 


PART 2


 


CONDITIONS PRECEDENT TO DRAWDOWN
OF LOANS ON FIRST CASH UTILISATION DATE


 


1.             A
copy of the Circular.


 


2.             Evidence
that Imperial’s authorised share capital has been increased by an amount
sufficient for the Rights Issue and that shareholder approval has been received
for the allotment of shares and the Acquisition as a Class 1 transaction.


 


113

















 


PART
3


 


FOR AN ADDITIONAL GUARANTOR


 


1.             Additional
Guarantors


 


(a)           A
Guarantor Accession Agreement, duly executed by the Obligors’ Agent and the
Additional Guarantor.


 


(b)           A
copy of the constitutional documents of the Additional Guarantor.


 


(c)           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.


 


(d)           A
specimen of the signature of each person authorised on behalf of the Additional
Guarantor to execute any Finance Document.


 


2.             Legal opinions


 


(a)           A
legal opinion of legal advisers in England and Wales addressed to the Finance
Parties.


 


(b)           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.


 


3.             Miscellaneous


 


(a)           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.


 


(b)           A
certificate of an authorised signatory of the Additional Guarantor certifying
that each copy document specified in Part 3 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.


 


(c)           If
available, a copy of the latest audited accounts of the Additional Guarantor.


 


(d)           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.


 


114

















 


SCHEDULE 3


 


FORM OF NOTICES


 


PART 1


 


FORM OF REQUEST


 


To:          [l] as
Facility Agent


 


[and [l] as
U.S. Dollar Swingline Agent]


 


From:      [               ]


 


Date:       [               ]


 


IMPERIAL
TOBACCO FINANCE PLC/IMPERIAL TOBACCO ENTERPRISE FINANCE LIMITED – 

Credit Agreement dated [l] 2007

(the Agreement)


 


3.             We
refer to the Agreement. This is a Request.


 


4.             We
wish to borrow a [[A/B/C] Term Loan [A/B/C] Revolving Credit Loan/Swingline
Loan/Loan under the Uncommitted Facility/arrange for an Aval to be issued under
the [A/B/C Term Loan Facilities/C Revolving Credit Facility]] on the following
terms:


 


	
  (a)

  	
   

  	
  Borrower:

  	
   

  	
  [               ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Utilisation
  Date:

  	
   

  	
  [               ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  Amount/currency:

  	
   

  	
  [               ]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  Term:

  	
   

  	
  [               ]

  



 


5.             [[Our
payment instructions are:    
[               ](1)/[Please
pay in accordance with our current standard settlement instructions]].


 


6.             We
confirm that each condition precedent under the Agreement which must be
satisfied on the date of this Request is so satisfied.


 


7.             [We
attach a copy of the proposed Aval.]


 


8.             This
Request is irrevocable.


 


[               ]


 


By:


 






(1)          For
cash cover for Avales.


 


115

















 


PART 2


 


FORM OF SWINGLINE EXTENSION
NOTICE


 


To:          [l] as
Facility Agent


 


From:      Imperial Tobacco
Finance PLC


 


Date:       [               ]


 


IMPERIAL
TOBACCO FINANCE PLC – 

Credit Agreement dated [l] 2007

(the Agreement)


 


1.             We
refer to the Agreement. This is a Swingline Extension Notice.


 


2.             [We
wish to request [name of the relevant Lenders]
to provide a Swingline Facility for the Swingline Extension Period commencing [relevant Swingline  Extension Date] in accordance with
Clause 8.4 (Swingline Facility Extension Option)].


 


IMPERIAL
TOBACCO FINANCE PLC


 


By:


 


116


















 


PART 3


 


FORM OF COMMITMENT REQUEST


 


To:          [l] as
Facility Agent


 


From:      Imperial Tobacco
Finance PLC


 


Date:       [               ]


 


IMPERIAL
TOBACCO FINANCE PLC – 

Credit Agreement dated [l] 2007

(the Agreement)


 


1.             We
refer to the Agreement. This is a Commitment Request.


 


2.             We
wish to request [name of the relevant Lenders][or][the Lenders] to provide a
Commitment under the Uncommitted Facility for the Availability Period
commencing on the Anticipated U.K. Duty Change Date specified below in
accordance with Clause 10.1 (Commitment Requests) on the following terms:


 


	
  (a)

  	
  Borrower:

  	
  [                  ]

  
	
   

  	
   

  	
   

  
	
  (b)

  	
  Anticipated
  U.K. Duty Change Date:

  	
  [                  ]

  
	
   

  	
   

  	
   

  
	
  (c)

  	
  Amount/currency:

  	
  £[                ]

  



 


IMPERIAL
TOBACCO FINANCE PLC


 


By:


 


117

















 


PART 4


 


FORM OF COMMITMENT NOTICE


 


To:          [l] as
Facility Agent


 


From       [Name of Lender]


 


Date:       [               ]


 


IMPERIAL
TOBACCO FINANCE PLC –


Credit Agreement dated [l] 2007


(the Agreement)


 


1.             We
refer to the Agreement. This is a Commitment Notice.


 


2.             This
letter constitutes an offer of a Commitment under the Uncommitted Facility
pursuant to Clause 10.3(a) (Offer and Acceptance) on the following terms:


 


	
  (a)

  	
  Name of Lender:

  	
  [                  ]

  
	
   

  	
   

  	
   

  
	
  (b)

  	
  Anticipated U.K.
  Duty Change Date:

  	
  [                  ]

  
	
   

  	
   

  	
   

  
	
  (c)

  	
  Margin:

  	
  [                  ]
  per annum

  
	
   

  	
   

  	
   

  
	
  (d)

  	
  Maximum
  principal amount of the Commitment

  	
  [                  ]

  
	
   

  	
   

  	
   

  
	
  (e)

  	
  [Other commercial terms]

  	
   

  



 


[Name of Lender]


 


By:


 


118

















 


PART 5


 


FORM OF ACCEPTANCE


 


To:          [l] as
Facility Agent


 


From:      Imperial Tobacco
Finance PLC


 


Date:       [               ]


 


IMPERIAL TOBACCO FINANCE
PLC –


Credit Agreement dated [l] 2007


(the Agreement)


 


1.             We
refer to the Agreement. This is an Acceptance Notice.


 


2.              [[We
wish to accept the following offer[s] pursuant to Clause 10.3(f) (Offer
and Acceptance) for the Anticipated U.K. Duty Change Date of [l]:


 


	
  Lender

  	
   

  	
  Date of offer by

  Lender

  	
   

  	
  Margin

  	
   

  	
  Amount of 

  Commitment

  	
   

  
	
  [            ]

  	
   

  	
  [            ]

  	
   

  	
  [            ]

  	
   

  	
  [            ]

  	
   

  
	
  [            ]

  	
   

  	
  [            ]

  	
   

  	
  [            ]

  	
   

  	
  [            ]

  	
   

  



 


/[We do not wish
to accept any offers pursuant to our Commitment Request dated [l].]


 


3.             All
other offers pursuant to our Commitment Request dated [l]
have not been accepted.


 


IMPERIAL
TOBACCO FINANCE PLC


 


By:


 


119

















 


PART 6


 


FORM OF GUARANTOR ACCESSION
AGREEMENT


 


To:          [l] as
Facility Agent


 


From:      Imperial Tobacco
Finance PLC and [Proposed Guarantor]


 


Date:       [               ]


 


IMPERIAL
TOBACCO FINANCE PLC -


Credit
Agreement dated [l] 2007


(the
Agreement)


 


1.             We
refer to the Agreement. This is a Guarantor Accession Agreement.


 


2.             [Name
of proposed guarantor] of [address/registered office/registered number] 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]


 


By:


 


120

















 


PART 7


 


FORM OF ISSUING ENTITY ACCESSION AGREEMENT


 


To:          [l] as
Facility Agent


 


From:      [Proposed Issuing
Entity]


 


Date:       [            ]


 


IMPERIAL
TOBACCO FINANCE PLC -


Credit
Agreement dated [l] 2007


(the
Agreement)


 


We refer to the
Agreement. This is an Issuing Entity Accession Agreement.


 


1.             [NEW
ISSUING ENTITY] of [address/registered office] agrees to become an Issuing
Entity under the Agreement and to be bound by the terms of the Agreement as an
Issuing Entity.


 


2.             We
are acceding to the Agreement in place of [RESIGNING ISSUING ENTITY].


 


3.             It
is intended that this document takes effect as a deed notwithstanding the fact
that a party may only execute this document under hand.


 


4.             This
Issuing Entity Accession Agreement has been executed and delivered as a deed on
the date stated at the beginning of this Issuing Entity Accession Agreement and
is governed by English law.


 


	
  Executed as a
  deed by

  [ISSUING ENTITY] 

  acting by

  	
   

  	
   

  
	
   

  	
  Director

  	
   

  
	
  and

  	
   

  	
   

  
	
   

  	
  Director/Secretary

  	
   

  
	
  Executed as a
  deed by 

  [FACILITY AGENT] 

  acting by

  	
   

  	
   

  
	
   

  	
  Director

  	
   

  
	
  and

  	
   

  	
   

  
	
   

  	
  Director/Secretary

  	
   

  
	
  Executed as a
  deed by 

  [RESIGNING ISSUING ENTITY] 

  acting by

  	
   

  	
   

  
	
   

  	
  Director

  	
   

  
	
  and

  	
   

  	
   

  
	
   

  	
  Director/Secretary

  	
   

  
	
  We confirm the above

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Executed as a
  deed by 

  IMPERIAL TOBACCO FINANCE PLC 

  acting by

  	
   

  	
   

  
	
   

  	
  Director

  	
   

  
	
  and

  	
   

  	
   

  
	
   

  	
  Director/Secretary

  	
   

  



 


121

















 


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 4 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 4 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 14.5 (Interest on
overdue amounts), for the relevant Term;


 


122

















 


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;


 


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 per cent. and B = 15 per cent., 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 (e).


 


(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 


 


123

















 


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 same jurisdiction as its Facility Office.


 


(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 4 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
4 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 rate, the Facility Agent may notify
all the Parties of any amendment to this Agreement which is required to reflect
this.


 


124

















 


SCHEDULE 5


 


FORM OF TRANSFER CERTIFICATE


 


To:          [l] as
Facility Agent


 


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


 


Date:       [               ]


 


IMPERIAL
TOBACCO FINANCE PLC -


Credit
Agreement dated [l] 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.](2)


 


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:

  	
   

  



 


 






(2)           Include
if applicable.


 


125

















 


SCHEDULE 6


 


FORM OF COMPLIANCE CERTIFICATE


 


To:          [l] as
Facility Agent


 


From:      Imperial Tobacco
Finance PLC


 


Date:       [               ]


 


IMPERIAL
TOBACCO FINANCE PLC -


Credit
Agreement dated [l] 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
[               ])](3)
and Consolidated Total Net Borrowings were
[               ]
and therefore, the ratio of Consolidated Total Net Borrowings to Consolidated
EBITDA was [               ]
to 1; 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](4):


 


[               ].


 


5.             [We
confirm that no Default is outstanding as at [insert relevant testing date].](5)


 


IMPERIAL
TOBACCO FINANCE PLC


 


By:


 


 






(3)           Include only for any
Measurement Period which includes the effective date of any business or company
acquired during that Measurement Period.


(4)           This statement need only be
made for a Compliance Certificate delivered with a set of Financial Statements
pursuant to Clause of the Agreement.


(5)           This statement need only be
made if requested by the Facility Agent pursuant to Clause (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.


 


126

















 


SCHEDULE 7


 


FORM OF RESIGNATION REQUEST


 


To:          [l] as
Facility Agent


 


From:      Imperial Tobacco Finance PLC


 


Date:       [               ]


 


IMPERIAL
TOBACCO FINANCE PLC -


Credit
Agreement dated [l] 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:


 


127

















 


SCHEDULE 8


 


FORM OF INDEMNITY CLAIM NOTICE


 


To:          [FACILITY AGENT]


 


Copy:     IMPERIAL TOBACCO FINANCE PLC


 


From:      [RELEVANT ISSUING ENTITY]


 


Date:       [           ]


 


IMPERIAL
TOBACCO FINANCE PLC


Credit
Agreement dated [l] 2007 (the Agreement)


 


1.             We
refer to the Agreement. This is Indemnity Claim Notice.


 


2.             We
certify that:


 


(a)           a
Claimed Amount has been demanded in an amount of €[l] ;
and


 


(b)           each
relevant Lenders share in the Claimed Amount determined in accordance with
Clause 7.2 (Lenders’ Indemnity) of the Agreement amounts to €[l].


 


3.             We
demand payment from each relevant Lender of the amount referred to paragraph
2(b) above.


 


4.             Payment
should be made to the following account:


 


	
  Account name:

  	
  [                       ]

  	
   

  
	
   

  	
   

  	
   

  
	
  Account number:

  	
  [                       ]

  	
   

  
	
   

  	
   

  	
   

  
	
  Account bank:

  	
  [                       ]

  	
   

  



 


By


 


[RELEVANT ISSUING
ENTITY]


 


128

















 


SCHEDULE 9


 


FORM OF AVALES


 


[l] (el Banco Avalista), sociedad válidamente
constituida y vigente con arreglo a la legislación [l], con domicilio social en [l], e inscrita en el Registro Mercantil de [l] con el número [l]. Actúan en su nombre y representación Don [l], mayor de edad, con domicilio en [l], con D.N.I. [l] y Don [l], mayor de edad, con domicilio en [l], con D.N.I. [l], debidamente facultados para este acto en virtud del
poder [insertar detalles del poder].


 


AVALA


 


Ante la
Comisión Nacional del Mercado de Valores, y en beneficio de los accionistas de
Altadis, S.A. que acudan a la oferta pública de adquisición formulada por la
sociedad IMPERIAL TOBACCO OVERSEAS HOLDINGS (3) LIMITED, con domicilio social
en [l], inscrita en el Registro Mercantil de [l] con el número [l] (el Oferente),
sobre [l] acciones de la sociedad Altadis, S.A. (la Oferta),
las obligaciones de pago asumidas por el Oferente en la Oferta, cuyos términos
y condiciones se describen en el folleto explicativo de la Oferta presentado
para su registro en la Comisión Nacional del Mercado de Valores, en
cumplimiento de lo dispuesto en el Real Decreto 1197/1991 de 26 de Julio sobre
el régimen de Ofertas Públicas de Adquisición de Valores.


 


El
importe máximo de este aval es de [l] EUROS ([l]Euros).


 


El
presente Aval se otorga con carácter irrevocable, incondicional y solidario,
con renuncia expresa a los beneficios de división, orden y excusión.


 


El pago
se hará en Madrid, a primer requerimiento de la Sociedad de Gestión de los
Sistemas de Registro, Compensación y Liquidación de Valores, S.A. (IBERCLEAR) o
de la Comisión Nacional del Mercado de Valores, formulado por escrito y
notificado al Banco Avalista en el domicilio de su sucursal en España, en la
calle [l]. Recibido el requerimiento de pago correspondiente, el
Banco Avalista procederá a efectuar el pago del importe correspondiente en la
cuenta que el requirente haya designado, transcurrido un (1) día hábil desde la
recepción de dicho requerimiento.


 


El
presente aval subsistirá hasta el completo cumplimiento de las obligaciones de
pago del Oferente derivadas de la Oferta, o, en su defecto, hasta la fecha en
que la Oferta sea retirada, anulada o declarada sin efecto.


 


El
presente aval está sujeto a la ley española. El Banco Avalista se somete
expresamente al fuero de los Jueces y Tribunales de Madrid para la resolución
de cualquier disputa o controversia que pudiese surgir en relación con la
interpretación, ámbito, efectos y ejecución del presente aval.


 


El
presente aval ha sido inscrito en el Registro Especial de Avales del Banco
Avalista con el número [l]


 


En [l], a
[l].


 


[Banco
Avalista]


 


129

















 


English
Translation


 


(for
information purposes only)


 


GUARANTEE


 


[        ]
(the Guarantor Entity), with registered
office at [        ], duly registered
with the Companies Registry of
[        ], with number
[        ], represented by
[        ], of legal age, with passport
number [        ], and
[        ] of legal age, with passport
number [        ], both with sufficient
powers pursuant to [insert details of relevant
power of attorney].


 


GUARANTEES


 


before the
COMISIÓN NACIONAL DEL MERCADO DE VALORES and for the benefit of the
shareholders of ALTADIS, S.A. who accept the takeover offer launched by
IMPERIAL TOBACCO OVERSEAS HOLDINGS (3) LIMITED with registered office at
[        ] and company number
[          ] (the Offeror), over [insert number of shares]
([        ]) shares in ALTADIS, S.A.
(the Offer), the payment obligations of the
Offeror arising under the Offer, which terms and conditions are described in
the Offer prospectus which has been presented for registration in the COMISIÓN
NACIONAL DEL MERCADO DE VALORES, in accordance with the provisions of Royal
Decree 1197/1991, 26 July, on takeover offers.


 


The maximum
amount guaranteed by the Guarantor Entity is euro
[        ]
([        ]).


 


This Guarantee
unconditionally, irrevocably and jointly and severally guarantees the payment
obligations of the Offeror arising under the Offer, with express waiver of the
benefits of ranking, priority and separation (“excusión,
orden y división”).


 


Payment of the
amounts payable under this guarantee will be made in Madrid on first demand for
payment made by the SOCIEDAD DE GESTIÓN DE LOS SISTEMAS DE REGISTRO,
COMPENSACIÓN Y LIQUIDACIÓN DE VALORES, S.A. IBERCLEAR or by the COMISIÓN
NACIONAL DEL MERCADO DE VALORES (CNMV), made in writing and addressed to the
Guarantor Entity at the address of its branch in Spain [address]. Once the demand for payment is
received, the Guarantor Entity will make the corresponding payment to the
account indicated on the demand after one (1) business day from receipt of the
relevant payment demand.


 


This guarantee
will remain in full force and effect until the payment obligations of the
Offeror arising under the Offer have been discharged in full or, if applicable,
until the date the Offer is withdrawn, annulled or declared as without effect.


 


This guarantee is
governed by Spanish law. The Guarantor Entity, waiving the right to any other
jurisdiction which it may be entitled to, submits to the jurisdiction of the
courts of the city of Madrid to resolve any dispute or disagreement that could
arise in relation to the interpretation, scope, performance, effect and
enforcement of this guarantee.


 


[This Guarantee
has been registered on the Special Registry of Guarantees of [Issuing Entity]
with number [        ].


 


In
[        ],
[        ]
[        ] two thousand and
[         ].


 


[Name of Issuing Entity]


 


130

















 


SIGNATORIES


 


Borrowers


 


IMPERIAL
TOBACCO FINANCE 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


 


BANCO
SANTANDER CENTRAL HISPANO S.A.


 


By:          MARCO ANTONIO ACHON TUÑON           CARLOS DE PEDROSO Y ALDASORO


 


BARCLAYS
CAPITAL, the investment banking division of Barclays Bank PLC


 


By:          KEITH HATTON


 


CITIGROUP
GLOBAL MARKETS LIMITED


 


By:          PAUL GIBBS


 


LEHMAN
BROTHERS INTERNATIONAL (EUROPE)


 


By:          BRUCE HENDRY


 


131

















 


THE
ROYAL BANK OF SCOTLAND PLC


 


By:          SEAN MALONE


 


 


The
Lenders


 


BANCO
SANTANDER CENTRAL HISPANO S.A., LONDON BRANCH


 


By:          GRANT SESSIONS            MARTA SANCHEZ-PALENCIA


 


BARCLAYS
BANK PLC


 


By:          KEITH HATTON


 


CITIBANK,
N.A., LONDON BRANCH


 


By:          PAUL GIBBS


 


LEHMAN
BROTHERS HOLDINGS, INC.


 


By:          A. TUCKER HACKETT


 


LEHMAN
LOAN FUNDING, LLC.


 


By:          A. TUCKER HACKETT


 


THE
ROYAL BANK OF SCOTLAND PLC


 


By:          SEAN MALONE


 


 


Issuing
Entities


 


BANCO
SANTANDER CENTRAL HISPANO S.A.


 


By:          MARCO ANTONIO ACHON TUÑON           CARLOS DE PEDROSO Y ALDASORO


 


BARCLAYS
BANK PLC


 


By:          KEITH HATTON


 


132

















 


CITIBANK
INTERNATIONAL PLC, SUCURSAL EN ESPAÑA


 


By:          PAUL GIBBS


 


LEHMAN
BROTHERS BANKHAUS A.G., LONDON BRANCH


 


By:          STEVEN HODGES              JULIAN WHEELER


 


LEHMAN
COMMERCIAL PAPER INC., UK BRANCH


 


By:          BRUCE HENDRY


 


THE
ROYAL BANK OF SCOTLAND PLC


 


By:          SEAN MALONE


 


 


Swingline
Lenders


 


BANCO
SANTANDER CENTRAL HISPANO, S.A. LONDON BRANCH


 


By:          GRANT SESSIONS            MARTA SANCHEZ-PALENCIA


 


BARCLAYS
BANK PLC


 


By:          KEITH HATTON


 


CITIBANK
N.A., LONDON BRANCH


 


By:          PAUL GIBBS


 


LEHMAN
BROTHERS HOLDINGS, INC.


 


By:          A. TUCKER HACKETT


 


THE
ROYAL BANK OF SCOTLAND PLC


 


By:          SEAN MALONE


 


 


133

















 


Facility
Agent


 


THE
ROYAL BANK OF SCOTLAND PLC


 


By:          SEAN MALONE


 


U.S.
Dollar Swingline Agent


 


THE
ROYAL BANK OF SCOTLAND PLC


 


By:          SEAN MALONE


 


134