Common use of Substitution and exchange Clause in Contracts

Substitution and exchange. 12.1 The Company may at any time and from time to time, with the consent of the Noteholders by Extraordinary Resolution, be replaced and substituted by any member of the Company’s Group as principal debtor or principal debtors (on one or more occasion) (in such capacity, the “Substituted Debtor”) in respect of all or any of the Notes provided that: (a) either the Company obtains an opinion from independent tax counsel (obtained shortly before such substitution takes place and based on full disclosure of relevant facts) to the effect that there is no significant risk that the substitution will be treated as a disposal of the Notes for the purpose of United Kingdom taxation of chargeable gains or HM Revenue and Customs confirms in writing that the substitution will not be treated as a disposal of the Notes for the purpose of United Kingdom taxation of chargeable gains; (b) such documents (if any) are executed by the Substituted Debtor as may be necessary to give full effect to the substitution (the “Documents”), including those pursuant to which the Substituted Debtor shall undertake in favour of each relevant Noteholder to be bound by the terms and conditions of the relevant Notes as fully as if the Substituted Debtor had been named in the Instrument and the Notes as the principal debtor in respect of those Notes; and (c) the relevant Notes are guaranteed by the Company. 12.2 Upon execution of the Documents, the relevant Notes shall have effect as if the Substituted Debtor were named in the Notes as principal debtor in place of the Company and the Company shall be released from all its obligations in respect of the Notes. 12.3 Not less than 20 Business Days after execution of the Documents, the Company shall give notice of any substitution to the Noteholders. 12.4 The Company may, with the consent of the Noteholders by Extraordinary Resolution, at any time require all or any of the Noteholders to exchange the Notes for loan notes issued by the Substituted Debtor on the same terms and conditions as those applicable to the Notes provided that the Company’s right to require an exchange pursuant to this Condition shall be exercisable only if: (a) the Company has either obtained the consent of the relevant Noteholders or it has obtained the opinion of independent tax counsel that such exchange will not crystallise a charge to any of the Noteholders to United Kingdom capital gains tax or corporation tax on chargeable gains and has obtained all relevant clearances from the relevant United Kingdom taxation authority or such exchange will fall within the provisions of section 135 of the Taxation of Chargeable Gains ▇▇▇ ▇▇▇▇ and prior clearance has been received from HM Revenue and Customs under section 138 of the Taxation of Chargeable Gains ▇▇▇ ▇▇▇▇ in respect of such exchange; (b) the loan notes issued in exchange will be issued on the same terms as the Loan Notes, save that the terms of the new loan notes will not include any further right of the issuer to require exchange or any similar right of exchange or conversion into other shares or securities; and (c) the loan notes issued in exchange are guaranteed by the Company. 12.5 The Company shall not be entitled to exercise its power of substitution or exchange under this Condition in respect of any holding of Notes if to do so would result in the holders of such Notes receiving payments of interest under withholding or deduction in respect of tax (or an increase in the rate of any such withholding or deduction) provided that this Condition shall not prevent the Company exercising its power of substitution or its power of exchange if the Substituted Debtor is a company resident in the United Kingdom for the purposes of United Kingdom taxation notwithstanding that the substitution or exchange may result in the holders of the Notes receiving payments of interest under withholding or deduction in respect of tax (or an increase in the rate of any such withholding or deduction). 12.6 For the avoidance of doubt, in the event that the Company or any Substituted Debtor complies fully with the provisions of this Condition, neither the Company nor the Substituted Debtor shall be liable for any tax or increase in tax of a Noteholder or to make any payment in respect of any withholding or deduction in respect of tax (or an increase in the rate of any such withholding or deduction) which arises in connection with a substitution or exchange.