Eleuthera Support Letter

  Eleuthera Cayman Islands segregated portfolio company, with registered office c/o Circumference FS (Cayman) Ltd., ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Avenue, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ Islands, acting through its segregated portfolio ‘What Light is Light SP’ (the “Noteholder”)

Rockley Phototonics Limited (the “Borrower”)
Rockley Phototonics Holdings Limited
Rockley Phototonics, Inc.

SIG-i Capital AG as arranger

We refer to the term facility agreement originally dated 29 September 2020, as amended from time to time between, among others, Argentum Securities Ireland pic (“Argentum”), Credit Suisse International as Agent and Security Agent, SIG-I Capital AG as arranger and the Borrower (the “Facility Agreement”).

We further refer to the agreed form amendment and restatement agreement (the “Amendment and Restatement Agreement”) and to Clause 8.4 (Lock-up Shares) in relation to lock-up of shares after a Qualified Exit.

Terms defined in the Facility Agreement have the same meaning in this support letter unless otherwise defined herein. In addition:

“Clearing Systems” means the clearing system(s) Euroclear Bank SA/NV and Clearstream Banking S.A.;

“Long Stop Date” means the earlier of (i) 14 August 2021 or (ii) the date on which the Notes redeem early in accordance with their terms;

“Noteholder Resolution” means a resolution of the holders of the Notes delivered through the Clearing Systems; and

“Notes” means the Series 2020-06 up to USD35,000,000 secured repackaged notes due 2026 linked to a convertible loan with Rockley Photonics Limited issued by Argentum pursuant to issue terms set out in an issue memorandum dated 29 September 2020.

We hereby irrevocably and unconditionally represent, warrant and confirm as follows:

we are the beneficial holder of 100% of the Notes, which have been accepted for clearance and are held through the Clearing Systems;

upon receipt of a valid Noteholder Resolution requesting the same, we will notify (or procure the notification) to our relevant Clearing System via our custodian in respect of the Notes, within the time limits provided for in relation to such resolution, authorising Argentum to enter into the Amendment and Restatement Agreement; and

we will remain the beneficial holder of 100% of the Notes until the earlier of (i) the Long Stop Date or (ii) the date of delivery of our instructions pursuant to the Noteholder Resolutions referred to in (B) above.

We hereby undertake not to dispose of or transfer any Lock-up Shares received by, or transferred to, us other than to a Related Fund for a period of time as specified by you, as Borrower, in writing but in no case exceeding ninety (90) days following the SPAC Conversion Date (the “Lock-Up Period”).

This support letter and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

This support letter has been executed as a deed and is delivered and takes effect on the date stated at the beginning of it.

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SCHEDULE 1 : Conditions Precedent

SCHEDULE 2 : Amended and Restated Facility Agreement

Rockley Photonics Limited (the “Original Borrower”);

Rockley Photonics Holdings Limited (the “New Borrower”);

Rockley Photonics, Inc. and Rockley Photonics Limited (the “Guarantors”);

Argentum Securities Ireland plc (the “Original Lender”); and

Credit Suisse International in its own name and as agent of the other Finance Parties (the “Agent”);

Credit Suisse International as security agent of the other Finance Parties (the “Security Agent”); and

SIG-i Capital AG (as “Arranger”).

This Deed is supplemental to, and amends and restates, the Original Facility Agreement (as defined below).

Each of the Parties has agreed, subject to the terms of this Deed, to make certain amendments to, and to restate, the Original Facility Agreement, including the accession of Rockley Photonics Holdings Limited as the New Borrower to the Original Facility Agreement (as amended by this Deed) and the resignation of Rockley Photonics Limited as the Original Borrower from the Original Facility Agreement (as amended by this Deed), as well as the assumption by the New Borrower of all of the debt and obligations of the Original Borrower.

Definitions and interpretation

Definitions

Incorporation of defined terms

Unless a contrary indication appears in this Deed, a term defined in the Original Facility Agreement has the same meaning in this Deed.

Unless a contrary indication appears in this Deed, the principles of construction set out in the Original Facility Agreement shall have effect as if set out in, and referring to, this Deed.

Third party rights

Designation

Conditions precedent

Effective Date

Subject to Clause 2.2 (Long-stop date) of this Deed, the provisions of Clause 4 (Amendment and Restatement) to Clause 12 (Guarantees and security) of this Deed shall take effect on and from the date on which the Agent notifies the Obligors’ Agent and the Lenders that it has received all of the documents and other evidence listed in Schedule 1 (Conditions Precedent) in form and substance satisfactory to the Agent. The Agent shall notify the Parent and the Lenders promptly upon being so satisfied.

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in Clause 2.1(A), the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

Long-stop date

Consent

Amendment and restatement

Resignation of the Original Borrower

Pursuant to clause 24 (Resignation of a Borrower) of the Amended and Restated Facility Agreement, the Original Borrower requests that, from the Effective Date, it be released from its obligations as a Borrower under the Original Facility Agreement and the Finance Documents.

Each of the Original Borrower and the Obligors’ Agent confirms that no Default is continuing or would result from the acceptance of the request in Clause 5 (Resignation of the Original Borrower).

On the Effective Date, notwithstanding any term of the Original Facility Agreement, the Amended and Restated Facility Agreement or any other Finance Document, the Original Borrower shall novate its rights and obligations under the Finance Documents to the New Borrower as set out below:

the New Borrower shall accede to the Facility as a Borrower and shall become a Party as a “Borrower” and shall be bound by the terms of the Original Facility Agreement, the Amended and Restated Facility Agreement and any other Finance Document to which it is a party as a Borrower;

the Original Borrower (in its capacity as a Borrower) and each Finance Party will be released from their respective obligations to each other under the Original Facility Agreement, the Amended and Restated Facility Agreement and any other Finance Document to which it is a party (the “Discharged Obligations”);

the New Borrower and each Finance Party will assume obligations towards each other which differ from the Discharged Obligations only to the extent that they are owed to or assumed by the New Borrower instead of the Original Borrower;

the rights under the Original Facility Agreement, the Amended and Restated Facility Agreement and any other Finance Document of:

the Original Borrower against each Finance Party; and

each Finance Party against the Original Borrower,

the New Borrower and each Finance Party will acquire rights against each other which differ from the Discharged Rights only to the extent they are exercisable by or against the New Borrower instead of the Original Borrower.

By its countersignature of this Deed, the Original Lender consents to the novation by the Original Borrower of its rights and obligations under the Finance Documents to the New Borrower.

Accession of the New Borrower

Terms defined in the Amended and Restated Facility Agreement shall bear the same meaning when used in this Clause 6, unless otherwise defined in this Deed.

On and from the Effective Date, the New Borrower agrees to become an Additional Borrower and to be bound by the terms of the Amended and Restated Facility Agreement and the other Finance Documents as an Additional Borrower pursuant to clause 23 (Additional borrowers) and clause 25 (Additional guarantors) of the Amended and Restated Facility Agreement.

The New Borrower confirms that it is a company duly incorporated under the laws of the Cayman Islands and is a limited liability company with registered number with registration number IC-3727889.

The Original Borrower and the New Borrower both confirm that no Default is continuing or would occur as a result of the New Borrower becoming an Additional Borrower.

The New Borrower’s administrative details for the purposes of the Facility Agreement are as follows:

The New Borrower intends to incur certain liabilities under the Amended and Restated Facility Agreement and to grant Security in favour of the Security Agent in the form of the New Debenture (the “Relevant Document”) on and from the Effective Date.

The New Borrower and the Security Agent agree that the Security Agent shall hold:

any Security in respect of liabilities created or expressed to be created pursuant to the Relevant Documents;

all proceeds of that Security; and

all obligations expressed to be undertaken by the New Borrower to pay amounts in respect of the liabilities to the Security Agent as trustee for the Secured Parties under the Amended and Restated Facility Agreement and secured by the Transaction Security together with all representations and warranties expressed to be given by the New Borrower (in the Amended and Restated Facility Agreement, Relevant Document or otherwise) in favour of the Security Agent as trustee for the Secured Parties, on trust for the Secured Parties on the terms and conditions contained in the Amended and Restated Facility Agreement and the Relevant Document.

New Guarantor

On the Effective Date, notwithstanding any term of the Amended and Restated Facility Agreement, the Original Borrower shall:

become party to the Amended and Restated Facility Agreement as an Original Guarantor; and

be bound by the terms of the Amended and Restated Facility Agreement and the other Finance Documents as an Original Guarantor.

Intercreditor Agreement

Assumption

Representations

The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing:

on the date of this Deed; and

on the Effective Date,

Each Obligor acknowledges that each Finance Party has entered into this Deed and has agreed to the amendments effected by this Deed in full reliance on these representations.

Continuing obligations

The provisions of the Original Facility Agreement and the other Finance Documents shall, save as amended by this Deed, continue in full force and effect.

References in the Original Facility Agreement to “this Deed”, “hereof”, “hereunder” and expressions of similar import shall, on and from the Effective Date, be deemed to be references to the Original Facility Agreement as amended and restated by this Deed.

References, however expressed, in any Finance Document (other than the Original Facility Agreement) to the Original Facility Agreement shall, on and from the Effective Date, be deemed to be references to the Original Facility Agreement as amended and restated by this Deed.

Guarantees and security

shall continue in full force and effect;

shall extend to the liabilities of the Obligors to the Finance Parties under the Finance Documents as amended by this Deed, subject to any limitations on such Security or guarantee expressly set out in the Finance Documents;

shall secure or continue to secure (as the case may be) all of the Secured Liabilities (as such term is defined in the New Debenture and/or the Supplemental Debenture) (including but not limited to the liabilities and obligations arising under the Amended and Restated Facility Agreement); and

shall not be otherwise affected, or discharged, by the terms of this Deed or the terms of the Amended and Restated Facility Agreement.

Transaction expenses

Fees

On the Effective Date, the Obligors’ Agent shall pay to the Original Lender a fee of EUR3,000. Such amount shall be paid in freely available funds in the relevant currency and to the relevant account separately designated by the Original Lender together with any tax or duties in respect thereof.

On or before the Effective Date, the Obligors’ Agent shall pay to (or to the direction of) Credit Suisse International: (A) a fee in the amount of USD181,084 payable to Credit Suisse International and (B) all associated fees, costs and expenses in respect of professional advice and third party services as separately agreed between or on behalf of Credit Suisse International and the Obligors. Such amounts shall be paid in freely available funds in the relevant currencies and to the relevant accounts separately designated by Credit Suisse International together with any tax or duties in respect thereof. The Obligors’ Agent shall provide Credit Suisse International with advance notice of the date on which such amounts shall be paid.

Miscellaneous

Incorporation of terms

Further assurance

Counterparts

Limited recourse

Limited Recourse

Non-Petition

Security

Survival

Governing law

Obligors

A copy of the constitutional documents and (in the case of each Obligor which is required to maintain a PSC Register (as defined in s.790C(10) of the Companies Act 2006) the PSC Register) of each Obligor or a certificate of an authorised signatory of each relevant Obligor certifying that the constitutional documents and (if applicable) its PSC Register last delivered to the Agent under the Original Facility Agreement have not been amended and remain in full force and effect.

A copy of a resolution of the board of directors of each Obligor:

approving the terms of, and the transactions contemplated by, this Deed and resolving that it execute and perform this Deed;

authorising a specified person or persons to execute this Deed on its behalf; and

authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with this Deed.

A specimen of the signature of each person authorised by the resolution referred to in paragraph 1.2 above.

A certificate of an authorised signatory of the relevant Obligor certifying that each copy document relating to it specified in this Schedule 1 (Conditions Precedent) is correct, complete and in full force and effect as at a date no earlier than the date of this Deed.

A certificate of an authorised signatory of each Obligor certifying that borrowing or guaranteeing, as appropriate, the Total Commitments (under the Amended and Restated Facility Agreement) would not cause any borrowing, guaranteeing or similar limit binding on that Obligor to be exceeded.

A certificate of good standing of the Borrower issued by the Registrar of Companies in the Cayman Islands.

Security and other Finance Documents

The New Debenture executed by all parties thereto.

The Supplemental Debenture executed by all parties thereto.

Any notices required to be given or executed under the terms of the New Debenture or the Supplemental Debenture.

The Eleuthera Undertaking.

An annotated register of mortgages of charges of the Borrower reflecting the security created by the Finance Documents.

Legal Opinions

A legal opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, legal advisers to the Arranger, substantially in the form distributed to the Lenders prior to signing this Deed.

A legal opinion of ▇▇▇▇▇▇ Group, legal advisers to the Arranger, as to the law of the Cayman Islands, substantially in the form distributed to the Lenders prior to signing this Deed.

A legal opinion of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, legal advisers to the Borrower, as to the law of the State of California, substantially in the form distributed to the Lenders prior to signing this Deed.

Scheme of Arrangement

Original Lender’s Funding Source

Successful completion of a consent solicitation process to approve amendments to the Original Lender’s Funding Source in relation to the matters envisaged in this Deed and execution of all documentation relating thereto by all parties to such documentation.

Completion to its satisfaction of the Original Lender’s “know your client” and related processes in relation to the matters envisaged in this Deed.

Completion to its satisfaction of Credit Suisse International’s (including as Agent and Security Agent) “know your client” and related processes in relation to the matters envisaged in this Deed.

Receipt by Credit Suisse International (including as Agent and Security Agent) of all internal approvals required in relation to the matters envisaged in this Deed.

Confirmation to the satisfaction of the Original Lender, the Agent and the Security Agent as to the process for allotting the SPAC Conversion Shares, substantially in the form as set out in the Amended and Restated Facility Agreement.

[Required tax confirmations—TBC]¹

Other documents and evidence

If an Additional Obligor is not incorporated in England and Wales, Scotland or Northern Ireland, such documentary evidence as legal counsel to the Agent may reasonably require, that such Additional Obligor has complied with any law in its jurisdiction relating to financial assistance or analogous process.

Evidence that all fees, costs and expenses then due from any Obligor pursuant to the terms of this Deed have been paid or will be paid by the Effective Date.

Evidence of the cancellation and redemption in full of the Existing Ahren Facility Agreement.

We are waiting to hear from Borrower’s tax counsel but pending this we would expect here (a) a representation as to UK tax residency, (b) a representation as to no UK and no Cayman withholding and (c) confirmation that the Borrower will file a DTTP form in line with the original facility]

SIGNED AND DELIVERED as a DEED

for and on behalf of

ROCKLEY PHOTONICS LIMITED

Acting by its duly authorised Attorney:

Title:

Name:

In the presence of:

Witness Signature

Name:

SIGNED AND DELIVERED as a DEED

for and on behalf of

ROCKLEY PHOTONICS HOLDINGS LIMITED

Acting by its duly authorised Attorney:

Title:

Name:

In the presence of:

Witness Signature

Name:

Address:

SIGNED AND DELIVERED as a DEED

for and on behalf of

ROCKLEY PHOTONICS, INC.

Acting by its duly authorised Attorney:

Title:

Name:

In the presence of:

Witness Signature

Name:

Address:

Occupation:

SIGNED AND DELIVERED as a DEED

for and on behalf of

ROCKLEY PHOTONICS LIMITED

Acting by its duly authorised Attorney:

Title:

Name:

In the presence of:

Witness Signature

Name:

Address:

Occupation:

SIGNED AND DELIVERED as a DEED

for and on behalf of

ARGENTUM SECURITIES IRELAND PLC

Acting by its duly authorised Attorney:

Title:

Name:

In the presence of:

Witness Signature

Name:

Address:

Occupation:

SIGNED AND DELIVERED as a DEED

for and on behalf of

CREDIT SUISSE INTERNATIONAL

SIGNED AND DELIVERED as a DEED

for and on behalf of

CREDIT SUISSE INTERNATIONAL

SIGNED AND DELIVERED as a DEED

for and on behalf of

SIG- i CAPITAL AG

▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP

Citypoint, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇

▇▇▇▇▇▇ ▇▇▇▇▇▇▇

T ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇

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SCHEDULE 6 : Form of Accession Deed

SCHEDULE 7 : Form of Resignation Letter

SCHEDULE 8 : Form of Compliance Certificate

SCHEDULE 9 : Existing Security

SCHEDULE 10 : Pricing

SCHEDULE 11 : SPAC Conversion Share Notice

ROCKLEY PHOTONICS HOLDINGS LIMITED (an exempted company incorporated with limited liability in the Cayman Islands, with registration number 372789) (the “Borrower”);

THE SUBSIDIARIES of the Borrower listed in Part 1 of Schedule 1 as guarantors (the “Guarantors”);

THE ENTITY listed in Part 2 Schedule 1 as lender (the “Original Lender”);

CREDIT SUISSE INTERNATIONAL as agent of the other Finance Parties (the “Agent”);

CREDIT SUISSE INTERNATIONAL as security trustee for the Secured Parties (the “Security Agent”); and

SIG-i CAPITAL AG as arranger (the “Arranger”).

Definitions and interpretation

Definition

an amount equal to the applicable Equity Valuation after deducting the Strike Price Valuation; and

the Starting Valuation.

the amount of its participation in any outstanding Loans; and

in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date.

in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; and

in relation to the United Kingdom, the UK Bail-In Legislation; and

in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.

marketable direct obligations issued or unconditionally guaranteed by the United States or any agency or any state of the United States or the United Kingdom having maturities of not more than one (1) year from the date of acquisition; and

commercial paper maturing no more than one (1) year after its creation and having the highest rating from either Standard & Poor’s Ratings Group or ▇▇▇▇▇’▇ Investors Service, Inc.

a new Holding Company of the Borrower being imposed for the purposes of a Flotation or Reorganisation;

the Rockley SPAC Merger;

the Rockley Share Exchange; or

a SPAC Listing.

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

cast, or control the casting of, more than 30% of the maximum number of votes that might be cast at a general meeting of the Borrower;

appoint or remove all, or the majority, of the directors or other equivalent officers of the Borrower; or

give directions with respect to the operating and financial policies of the Borrower with which the directors or other equivalent officers of the Borrower are obliged to comply;

the holding beneficially of more than 30% of the issued share capital of the Borrower (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).

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

in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,

any Obligor or any of their advisers; or

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any Obligor or any of their advisers,

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 38 (Confidentiality); or

is identified in writing at the time of delivery as non-confidential by any Obligor or any of their advisers; or

is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (A) or (B) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with any Obligor and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

from performing its payment obligations under the Finance Documents; or

from communicating with other Parties in accordance with the terms of the Finance Documents,

sections 1471 to 1474 of the Code or any associated regulations;

any treaty, law, guidance or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (A) above or any analogous provision of non-US law; or

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (A) or (B) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.

in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 01 July 2014; or

in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within paragraph (A) above, the first date from which such payment may become subject to a deduction or withholding required by FATCA.

monies owed to any banking, financial, lending or other similar institute or organisation;

any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;

any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock, commercial paper or any similar instrument;

indebtedness for monies borrowed or raised under any other transaction that has the commercial effect of borrowing;

the amount of any liability in respect of any Finance Lease;

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

unpaid professional fees payable in respect of any of transactions contemplated by this Agreement on behalf of the Lender, unpaid accrued interest on any borrowing or indebtedness referred to in this definition of “Financial Indebtedness”, together with any prepayment premiums or other penalties, fees, expenses or breakage costs arising (or which would arise) in connection with the repayment of any such borrowing or indebtedness;

any amount raised under any other transaction (including any forward sale or purchase agreement) of a type not referred to in any other paragraph of this definition having the commercial effect of a borrowing;

any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);

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

the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (A) to (H) above.

a successful application being made for the admission of any part of the share capital of the Borrower (or a new Holding Company of the Borrower) to the Official List maintained by the FCA and the admission of any part of the share capital of the Borrower to trading on the London Stock Exchange plc;

the grant of permission to deal in any part of the issued share capital of the Borrower (or a new Holding Company of the Borrower) on the New York Stock Exchange, the National Association of Securities Dealers Automated Quotations exchange (NASDAQ) or the Stock Exchange of Hong Kong (SEHK); or

the issued share capital of the Borrower is listed or quoted on any of the stock exchanges referred to in sub-paragraphs (A) or (B) above pursuant to the formation of the Rockley SPAC.

the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;

the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim;

the principle that in certain circumstances Security granted by way of fixed charge may be recharacterised as a floating charge or that security interests purported to be constituted by an assignment may be recharacterised as a charge;

the principle that any provision for the payment of compensation or additional interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void;

the principle that an English court may not give effect to a provision dealing with the cost of litigation where the litigation is unsuccessful or the court itself has made an order for costs;

the principle that the legality, validity, binding nature or enforceability or any security under a security document which is not governed by the laws of jurisdiction where the asset or assets purported to be secured under that security document are situated may be flawed; and

similar principles, rights and defences under the laws of any relevant jurisdiction.

any Original Lender; and

any bank, financial institution, trust, fund or other entity which has become a Party as a “Lender” in accordance with Clause 21 (Changes to the Lenders),

the business, operations, property, condition (financial or otherwise) of any Obligor;

the ability of an Obligor to perform its payment obligations under the Finance Documents; or

subject to the Legal Reservations and the Perfection Requirements, the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting to be granted pursuant to any of, the Finance Documents or the rights or remedies or any Finance Party under any of the Finance Documents.

has gross assets, net assets or turnover (excluding intra-group items) representing 5%, or more of the gross assets, net assets or turnover of the Group, calculated on a consolidated basis; and

is a wholly owned subsidiary.

(subject to paragraph (C) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;

if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and

if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.

if a voluntary prepayment is made under Clause 7.2 (Voluntary Prepayment of Loans), 1.236x;

if a Par Value Exit occurs, the relevant corresponding Base Multiple as per the definition of “Base Multiple” in this Agreement;

if a Greater Value Exit occurs, the relevant corresponding Add-on Multiple as per the definition of “Add-on Multiple” in this Agreement; or

in the case of a repayment on the Maturity Date, 1.236x; and

in any other instances, any multiple referenced under the column headed “Relevant Amount” pursuant to Schedule 10 (Pricing).

its jurisdiction of incorporation;

any jurisdiction in which any asset is situated which is subject to, or is intended to be subject to, any Security to be created by it pursuant to, or in connection with, the Finance Documents in favour of any Finance Party; and

any jurisdiction in which it conducts its business.

whose name is listed on, or is owned or controlled (in each case, directly or indirectly) by a person whose name is listed on, or acting on behalf of a person whose name is listed on, any Sanctions List;

that is located in, incorporated, organised or established under the laws of, or resident in a country or territory that is the target of countrywide or territory-wide Sanctions, or owned or controlled (in each case, directly or indirectly) by, or acting on behalf of, a person located in, incorporated, organised or established under the laws of, or resident under the laws of, a country or territory that is, or the government of which is, subject to countrywide or territory-wide Sanctions;

that is a governmental agency, authority or body or state owned enterprise of any country or territory that is subject to Sanctions;

that is otherwise the target of any countrywide or territory-wide Sanctions;

whose property, or who is owned or controlled (in each case, directly or (to the Borrower’s knowledge) indirectly) by a person whose property, or who is acting on behalf of a person whose property, in each case, has been blocked, or is subject to seizure, forfeiture or confiscation under any applicable anti-terrorism law; or

with which any Finance Party is prohibited from dealing or otherwise engaging in any transaction pursuant to Sanctions.

the United Nations;

the United States of America;

the European Union;

the United Kingdom of Great Britain and Northern Ireland;

the State Secretariat for Economic Affairs SECO; and

the governments and official institutions or agencies of any of paragraphs (A) to (E) above, including OFAC, the US Department of State, and Her Majesty’s Treasury.

the “Specially Designated Nationals List” and the “Consolidated Non-SDN List” each administered and enforced by OFAC; and

the “Financial Sanctions: Consolidated List of Targets” administered and enforced by Her Majesty’s Treasury,

the Rockley SPAC; or

any special purposes acquisition company formed for the purpose of raising capital through an initial public offering of equity and using those funds to acquire an operating business and the shares of which are listed on the New York Stock Exchange or other exchange.

the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and

the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112);

in relation to the United Kingdom, value added tax imposed by the Value Added Tax ▇▇▇ ▇▇▇▇ and legislation and regulations supplemental thereto; and

any other tax of a similar nature, whether imposed in the United Kingdom or a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraphs (A) or (B) above, or imposed elsewhere.

in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;

in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and

in relation to any other applicable Bail-In Legislation:

any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and

any similar or analogous powers under that Bail-In Legislation.

Construction

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

the “Agent”, the “Borrower” any “Finance Party”, any “Lender”, any “Arranger”, any “Obligor”, any “Party” or any “Security Agent” shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents and, in the case of the Security Agent, any person for the time being appointed as Security Agent or Security Agents in accordance with the Finance Documents;

“assets” includes present and future properties, revenues and rights of every description;

a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;

“indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

a “person” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

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 the type that the relevant person is obliged to comply with) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

a provision of law is a reference to that provision as amended or re-enacted;

any matter “including” specific instances or examples of such matter shall be construed without limitation to the generality of that matter (and references to “includes” and “including” shall be construed accordingly);

a time of day is a reference to London time; and

any references to “this Agreement” means the Original Facility Agreement and as more recently amended and restated by way of an Amendment and Restatement Deed dated [●] 2021 (and as may be further amended and/or restated, novated, supplemented or extended from time to time).

The determination of the extent to which a rate is “for a period equal in length” to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

Clause and schedule headings are for ease of reference only.

Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

A reference to the singular includes the plural and vice versa.

A Default (other than an Event of Default) is “continuing” if it has not been remedied or waived and an Event of Default is “continuing” if it has not been remedied to the satisfaction of the Agent or waived in writing by the Agent.

Currency symbols and definitions

Third party rights

The facility

The Facility

[Reserved]

Finance Parties’ rights and obligations

The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with Clause 2.3(C). The rights of each Finance Party include any debt owning to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

[Reserved]

Obligors’ Agent

Each Obligor (other than the Borrower) by its execution of this Agreement, an Accession Deed or the Amendment and Restatement Deed irrevocably appoints the Borrower (acting through one or more authorised signatories) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

the Borrower on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of the Borrower, Utilisation Requests), to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and

each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Borrower,

Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Obligors’ Agent or given to the Obligors’ Agent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Obligors’ Agent and any other Obligor, those of the Obligors’ Agent shall prevail.

Purpose

Purpose

The Borrower shall apply all amounts borrowed or assumed by it under the Facility towards its general corporate and working capital purposes.

Monitoring

Conditions of utilisation

Initial conditions precedent

The Borrower may not deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed Schedule 2 (Conditions precedent to Initial Utilisation) in form and substance satisfactory to the Agent. The Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.

Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in Clause 4.1(a), the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

Further conditions precedent

no Default is continuing or would result from the proposed Loan; and

the Repeating Representations to be made by each Obligor are true in all material respects.

Maximum number of Loans

The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation two or more Loans would be outstanding.

The Borrower may not request that a Loan be divided if, as a result of the proposed division, two or more Loans would be outstanding.

Utilisation

Delivery of a Utilisation Request

Completion of a Utilisation Request

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

the proposed Utilisation Date is a Business Day within the Availability Period and not less than 5 Business Days after the date of the Utilisation Request (or such other time as agreed between the Borrower and the Arranger); and

the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount).

Only one Loan may be requested in each Utilisation Request.

Currency and amount

The currency specified in a Utilisation Request must be dollars.

The amount of the proposed Loan must be an amount which is not more than the Available Facility and which is a minimum of the aggregate of the Commitments or, if less, the Available Facility.

Lenders’ participation

If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date.

The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

The Agent shall notify each Lender of the amount of each Loan and the amount of its participation in that Loan.

Cancellation of Commitment

Repayment

Repayment of Loans

The Borrower shall repay the aggregate amount of the Loans utilised or assumed by it in instalments by repaying on each Repayment Date an amount equal to each Repayment Instalment indicated below and which reduces the Principal Amount by the amount set out opposite that Repayment Date for each corresponding Repayment Instalment, subject always to no Qualified Exit occurring at the time:

31 December 2021

31 March 2022

Maturity Date

If the Agent receives a payment for applicable amounts due in respect of a Repayment Instalment that is insufficient to discharge the full Repayment Instalment due on a specific Repayment Date, the Agent shall apply that payment towards the obligations of the Borrower under the Finance Documents in the order stipulated under Clause 31.5 (Partial payments), provided further that, for the purposes of Clause 31.5 (Partial payments) and this Clause 6 (Repayment), the difference between the Repayment Instalment and the Reduction of Principal Amount paid shall be treated as a fee, interest or commission as per Clause 31.5(A)(2) (Partial payments) and thus shall be applied prior to any payments of principal.

Certain provisions of this Agreement are expressed to apply following the Maturity Date. For the avoidance of doubt, such provisions shall only apply to the extent that this Agreement is extended beyond the Maturity Date (any such extension being subject to the absolute discretion of the parties hereto).

Reborrowing

Prepayment and cancellation

Illegality

that Lender shall promptly notify the Agent upon becoming aware of that event;

upon the Agent notifying the Borrower, each Available Commitment of that Lender will be immediately cancelled; and

to the extent that the Lender’s participation has not been transferred pursuant to Clause 7.3(D), the Borrower shall repay that Lender its Outstanding Balance Owed based on its participation in the Loans made to the Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s corresponding Commitment(s) shall be cancelled in the amount of the participations repaid.

Voluntary prepayment of Loans

Subject to the remainder of this Clause, prior to the Maturity Date, the Borrower may prepay the whole, but not part, of the Loans, plus the applicable Repayment Premium payable.

No prepayment may be made under this Clause 7.2 at any time after the Borrower has delivered a Qualified Exit Notice to the Agent which remains outstanding, or if the board of directors of the Borrower reasonably considers that a Qualified Exit will take place within 3 Months of the proposed date upon which the prepayment is intended to be made.

Right of replacement or repayment and cancellation in relation to a single Lender

If:

any sum payable to any Lender by an Obligor is required to be increased under Clause 11.2(C); or

any Lender claims indemnification from the Borrower under Clause 11.3 (Tax indemnity),

On receipt of a notice of cancellation referred to in Clause 7.3(A), the Commitment of that Lender shall immediately be reduced to zero.

On the last day of each Interest Period which ends after the Borrower has given notice of cancellation under Clause 7.3(A) (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay an amount equal to the Outstanding Balance Owed of such Lender’s participation in the outstanding Loans.

If:

any of the circumstances set out in Clause 7.3(A) apply to a Lender; or

an Obligor becomes obliged to pay any amount in accordance with Clause 7.1 (Illegality) to any Lender,

The replacement of a Lender pursuant to Clause 7.3(D) shall be subject to the following conditions:

the Borrower shall have no right to replace the Agent;

neither the Agent nor any Lender (or the Arranger, on behalf of the Original Lender) shall have any obligation to find a replacement Lender;

in no event shall the Lender replaced under Clause 7.3(D) be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and

the Lender shall only be obliged to transfer its rights and obligations pursuant to Clause 7.3(D) once it is satisfied that it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to that transfer.

A Lender (or in the case of the Original Lender, the Arranger) shall perform the checks described in Clause 7.3(E)(4) as soon as reasonably practicable following delivery of a notice referred to in Clause 7.3(D) and shall notify the Agent and the Borrower when it is satisfied that it has complied with those checks.

Mandatory prepayment and cancellation

For the purpose of this Clause 7.4:

a Change of Control; or

the sale of all or substantially all of the assets of the Borrower whether in a single transaction or a series of related transactions.

Upon the occurrence of a Qualified Exit, the Facility will be immediately cancelled and shall immediately cease to be available for further utilisation and an amount equal to the applicable Exit Value shall become due and payable upon completion of a Non-Qualified Trade Sale.

[Reserved]

Restrictions

Any notice of cancellation or prepayment given by any Party under this Clause 7 (Prepayment and cancellation) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

Any prepayment under this Agreement in respect of amounts due under Clause 20.15 (Acceleration) shall be made on the basis of the Outstanding Balance Owed or, where or Clause 20.16 (Acceleration upon an Insolvency Event) applies, pursuant to that clause.

The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

If the Agent receives a notice under this Clause 7 (Prepayment and cancellation) it shall promptly forward a copy of that notice to either the Borrower or the affected Lender (and in the case of the Original Lender which is an affected Lender, the Arranger), as appropriate.

If all or part of any Lender’s participation in a Loan is repaid or prepaid an amount of that Lender’s Commitment (equal to the amount of the participation which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment.

Conversion

Conversion prior to a SPAC Listing

On the SPAC Completion Date, an amount equal to the SPAC Conversion Amount will be discharged in full by way of a conversion into and in consideration for the issue of SPAC Conversion Shares issued pro rata to each Lender (or instead directly to a person designated by the Lender to receive such shares instead of the relevant Lender (the “Lender Designate”)) in accordance with the SPAC Conversion Amount owed to each Lender.

The SPAC Conversion Shares will be issued to each Lender (or if applicable, directly to its Lender Designate) accordingly on (and in any event no later than) the SPAC Completion Date and in accordance with Clause 8.2 (Procedure—SPAC Conversion Shares) (the “SPAC Conversion Date”).

All Principal Amounts (together with all interest accrued) less an amount equal to the SPAC Conversion Amount once the SPAC Conversion Date has occurred, shall remain due and payable in accordance with the terms of this Agreement.

Any interest accrued on the SPAC Conversion Amount (the “Roll Over Interest”) falling due and payable on the SPAC Conversion Date shall rollover and be paid in cash on the next interest payment date following the SPAC Conversion Date in accordance with Clause 9.2 (Payment of Interest).

Procedure—SPAC Conversion Shares

On the SPAC Conversion Date, the SPAC Conversion Amount will be automatically converted into and utilised as consideration for the number of shares of the Borrower (such shares being the SPAC Conversion Shares) on par at the same effective price paid to the then existing shareholders of the Borrower (the “SPAC Conversion”), with the number SPAC Conversion Shares to be issued as confirmed by the Parties in accordance with Clause 8.2(B)) below and no further action shall be required of the Lenders, a Lender Designate or any of the other Finance Parties in connection with the SPAC Conversion.

Prior to (and no later than) the SPAC Conversion Date, the Borrower will calculate the exact number of SPAC Conversion Shares to be issued to the Lender or a Lender Designate in accordance with Clause 8.2(A) above, and the Borrower shall confirm the number of SPAC Conversion Shares to be issued in accordance with Clause 8.2(A) above by sending a notice detailing such number of shares in writing substantially in the form as provided in Schedule 11 (SPAC Conversion Share Notice), which the Arranger will acknowledge, as soon as reasonably practicable, and in any event no later than 2 Business Days’ following receipt of such notice in writing from the Borrower, by countersigning the acknowledgment to the notice, substantially in the form as provided in Schedule 11 (SPAC Conversion Share Notice).

Each Lender shall be deemed irrevocably to authorise and instruct the Borrower to apply the redemption monies equal to the SPAC Conversion Amount that is payable to the relevant Lender in subscribing (for the relevant Lender or its Lender Designate, as applicable) for the SPAC Conversion Shares on conversion of the SPAC Conversion Amount and the Borrower shall procure that the SPAC Conversion Shares shall be issued and allotted by the Borrower as fully paid up on the relevant SPAC Conversion Date, and if so required by or deemed necessary or desirable under the law of the Cayman Islands or any other applicable laws, any certificates for such shares shall be dispatched to the persons entitled to them at their own risk.

The Borrower shall, on the SPAC Conversion Date:

issue (or procure the issue) to the Lenders (or their Lender Designate(s), as applicable) the number of shares due in accordance with the provisions of this Clause 8 (Conversion);

execute (or procure the execution of) such documents as may be required in connection with the issue of the shares to the Lenders (or their Lender Designate(s), as applicable); and

make (or procure the making of by the Transfer Agent) the appropriate entries in the Borrower’s register of members in respect of the issue of shares to the Lenders (or their Lender Designate(s), as applicable).

The Principal Amount shall automatically be reduced by an amount corresponding to the SPAC Conversion Amount when (but not before): (i) the Lenders (or their Lender Designate(s), as applicable) have been registered in the register of members of the Borrower and all relevant book entries have been completed by the Transfer Agent; and (ii) the Lenders (or their Lender Designate(s) as applicable) shall have received share certificates representing the shareholding of the Lenders if so required or deemed necessary or desirable under the laws of the Cayman Islands or any other applicable law.

The Lender Designate

SPAC Lock-up Period

Costs relating to the SPAC Conversion Shares

Without prejudice to any other provision in this Agreement, all reasonable costs of any professional advisers, all expenses and any taxes and stamp duties incurred in connection with the formation of the Rockley SPAC and/or the creation, allotment and issuance of shares (including notary and other legal fees), including the transfer of shares from a Lender to Eleuthera SPC or any person designated by them, shall be borne by the Borrower.

To the extent that any Finance Party incurs such costs or expenses or taxes or stamp duties as a result of the formation of the Rockley SPAC and/or the creation, allotment, issuance and/or transfer of shares, the Borrower shall, from time to time, on demand by the Agent, indemnify the Finance Parties on a full indemnity basis against such costs or expenses or taxes together with any VAT thereon incurred.

Interest

Calculation of interest

Payment of interest

Default interest

Subject to Clause 9.4 (Interest after the Maturity Date), if the Borrower fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue based on the Outstanding Balance Owed at a rate which is 3 per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods. Any interest accruing under this Clause 9.3 shall be payable by the Borrower within 3 Business Days of written demand by the Agent.

Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain due and payable.

Interest after the Maturity Date

Notification of rates of interest

Interest periods

Interest Periods

Subject to Clauses 10.1(B) and 10.1(C) below, each Interest Period will, subject to Clause 10.2 (Changes to Interest Periods), be three Months.

An Interest Period for a Loan shall not extend beyond the Maturity Date.

Each Interest Period for a Loan shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period.

Changes to Interest Periods

The Agent may shorten the Interest Period for a Loan to ensure that it ends on the same day as another Loan which is outstanding.

If the Agent makes any change to an Interest Period referred to in this Clause 10.2, it shall promptly notify the Borrower.

Non-Business Days

Consolidation and division of Loans

relate to Loans; and

end on the same date,

Tax gross-up and indemnities

Definitions

In this Agreement:

S+S Note: TBC if this is required.

where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender’s name in Part 2 of Schedule 1 (The Original Parties), and

where the Borrower is an Original Borrower, is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or

where the Borrower is an Additional Borrower, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower; or

where it relates to a Treaty Lender that is not an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which it executes on becoming a Party as a Lender; and

where the Borrower is a Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of that date; or

where the Borrower is not a Borrower as at the date on which that Treaty Lender becomes a Party as a Lender, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower.

a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

a Lender:

which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or

in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

a Lender which is:

a company resident in the United Kingdom for United Kingdom tax purposes;

a partnership each member of which is:

a company so resident in the United Kingdom; or

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

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

a Treaty Lender; or

a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Finance Document.

a company resident in the United Kingdom for United Kingdom tax purposes;

a partnership each member of which is:

a company so resident in the United Kingdom; or

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

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

is treated as a resident of a Treaty State for the purposes of the Treaty;

does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is effectively connected.

Unless a contrary indication appears, in this Clause 11 (Tax gross-up and indemnities) a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

Tax gross-up

Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender (or the Arranger on behalf of the Original Lender) it shall notify the Borrower and that Obligor.

If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

A payment shall not be increased under Clause 11.2(C) by reason of a Tax Deduction on account of Tax imposed by the United Kingdom, if on the date on which the payment falls due any of the following apply:

the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or

the relevant Lender is a Qualifying Lender solely by virtue of paragraph (1)(b) of the definition of Qualifying Lender; and:

an officer of HM Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment or from the Borrower a certified copy of that Direction; and

the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

the relevant Lender is a Qualifying Lender solely by virtue of paragraph (1)(b) of the definition of Qualifying Lender and:

the relevant Lender has not given a Tax Confirmation to the Borrower; and

the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Borrower, on the basis that the Tax Confirmation would have enabled the Borrower to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA; or

the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Clause 11.3 (Tax indemnity) or Clause 11.2(H).

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

Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

Subject to Clause 11.2(G)(2) and Clause 11.2(G)(3), a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

Nothing in Clause 11.2(G)(1) shall require a Treaty Lender to:

register under the HMRC DT Treaty Passport scheme; or

apply the HMRC DT Treaty Passport scheme to any Utilisation if it has so registered.

A Treaty Lender which is an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Schedule 1 (The Original Parties); and

a Treaty Lender which is not an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the documentation which it executes on becoming a Party as a Lender, and, having done so, that Lender shall automatically be deemed to have discharged all its obligations and responsibilities pursuant to Clause 11.2(G)(1), subject to Clause 11.2(H)

If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with Clause 11.2(G)(3):

such confirmation shall constitute notification by such Lender to the Borrower that the Lender wishes the HMRC DT Treaty Passport scheme to apply to this Agreement and that pursuant to such scheme the Borrower must comply with its obligations under Clause 11.2(H)(2); and

the Borrower shall, to the extent that such a Lender is a Lender under a Facility made available to the Borrower pursuant to Clause 2.1 (The Facility), file a duly completed Form DTTP2 in respect of such Lender with HM Revenue & Customs within 30 days of the date on which such Lender became a Party as a Lender (and in any event by no later than 30 working days prior to the first date on which a payment of interest falls due under this Agreement).

If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (G)(2) above and a Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:

that Borrower DTTP Filing has been rejected by HM Revenue & Customs;

HM Revenue & Customs has not given the Borrower authority to make payments to that Lender without a Tax Deduction within 30 days of the date of the Borrower DTTP Filing; or

HM Revenue & Customs has given the Borrower authority to make payments to that Lender without a Tax Deduction but such authority has subsequently been revoked or expired,

If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with Clause 11.2(G)(3), no Obligor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s Commitment or its participation in any Loan unless the Lender otherwise agrees in writing.

The Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of (i) that Borrower DTTP Filing and (ii) (upon receipt from HMRC) the applicable treaty clearance letter, in each case to the Agent for delivery to the relevant Lender.

A UK Non-Bank Lender which is an Original Lender gives a Tax Confirmation to the Borrower by entering into this Agreement.

A UK Non-Bank Lender shall promptly notify the Borrower and the Agent if there is any change in the position from that set out in the Tax Confirmation.

Tax indemnity

The Borrower shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

Clause 11.3(A) shall not apply:

with respect to any Tax assessed on a Finance Party:

under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

under the law of the jurisdiction in which that Finance Party is located in respect of amounts received or receivable in that jurisdiction,

to the extent a loss, liability or cost:

is compensated for by an increased payment under Clause 11.2 (Tax gross-up);

would have been compensated for by an increased payment under Clause 11.2 (Tax gross-up) but was not so compensated solely because one of the exclusions in Clause 11.2(C) (Tax gross-up) applied; or

relates to a FATCA Deduction required to be made by a Party.

A Protected Party making, or intending to make a claim under Clause 11.3(A) shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.

A Protected Party shall, on receiving a payment from an Obligor under this Clause 11.3 (Tax indemnity), notify the Agent.

Tax Credit

a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

that Finance Party has obtained and utilised that Tax Credit, the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.

Lender status confirmation

not a Qualifying Lender;

a Qualifying Lender (other than a Treaty Lender); or

a Treaty Lender.

Stamp taxes

VAT

All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to Clause 11.7(B), if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).

If VAT is or becomes chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”) under a Finance Document, and any Party other than the Recipient (the “Relevant Party”) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this Clause 11.7(B)(1) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

Any reference in this Clause 11.7 (VAT) to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to any member of such group which is responsible for accounting for, or paying, VAT on behalf of such group, or on behalf of any or all of the members thereof.

In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.

FATCA information

Subject to Clause 11.8(C), each Party shall, within ten Business Days of a reasonable request by another Party:

confirm to that other Party whether it is:

a FATCA Exempt Party; or

not a FATCA Exempt Party;

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

If a Party confirms to another Party pursuant to Clause 11.8(A)(1) that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

Clause 11.8(A) shall not oblige any Finance Party to do anything, and Clause 11.8(A)(3) shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

any law or regulation;

any fiduciary duty; or

any duty of confidentiality.

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with Clause 11.8(A)(1) or Clause 11.8(A)(2) (including, for the avoidance of doubt, where Clause 11.8(C) applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

If the Borrower is a US Tax Obligor or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:

where the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of the Original Facility Agreement;

where the Borrower is a US Tax Obligor on a date on which any other Lender becomes a Party as a Lender, that date; or

where the Borrower is not a US Tax Obligor, the date of a request from the Agent,

a withholding certificate on Form W-8, Form W-9 or any other relevant form; or

any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender (or in the case of the Original Lender, the Arranger, acting on its behalf) pursuant to Clause 11.8(E) above to the Borrower.

If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to Clause 11.8(E) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrower.

The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender (or in the case of the Original Lender, the Arranger acting on its behalf) pursuant to Clause 11.8(E) or Clause 11.8(G) above without further verification. The Agent shall not be liable for any action taken by it under or in connection with Clause 11.8(E), Clause 11.8(F) or Clause 11.8(G).

FATCA Deduction

Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Borrower and the Agent and the Agent shall notify the other Finance Parties.

Increased costs

Increased costs

Subject to Clause 12.3 (Exceptions) the Borrower shall, within three Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of:

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

compliance with any law or regulation made after the date of the Original Facility Agreement; or

the implementation or application of, or compliance with, Basel III or any law or regulation which implements Basel III (including for the avoidance of doubt, CRD IV to the extent that is applies to Basel III) (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

In this Agreement:

“Basel III” means:

the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.

“CRD IV” means:

Regulation (EV) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms as amended by Regulation (EU) 2019/876 of the European Parliament and of the Council of 20 May 2019; and

Directive 2013/36EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC as amended by Directive (EU) 2019/878 of the European Parliament and of the Council of 20 May 2019.

“Increased Costs” means:

a reduction in the rate of return from a Facility or on a Finance Party’s (or its Affiliate’s) overall capital;

an additional or increased cost; or

a reduction of any amount due and payable under any Finance Document,

Increased cost claims

A Finance Party intending to make a claim pursuant to Clause 12.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrower.

Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

Exceptions

Clause 12.1 (Increased costs) does not apply to the extent any Increased Cost is:

attributable to a Tax Deduction required by law to be made by an Obligor;

attributable to a FATCA Deduction required to be made by a Party;

compensated for by Clause 11.3 (Tax indemnity) (or would have been compensated for under Clause 11.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in Clause 11.3(B) applied);

attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.

In this Clause 12.3, a reference to a “Tax Deduction” has the same meaning given to that term in Clause 1.1 (Definitions).

Other indemnities

Currency indemnity

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

making or filing a claim or proof against that Obligor;

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

Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

Other indemnities

the occurrence of any Event of Default;

a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 30 (Sharing among the Finance Parties);

funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or

a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.

Indemnity to the Agent

investigating any event which it reasonably believes is a Default;

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.

Indemnity to the Security Agent

Each Obligor jointly and severally shall promptly indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of:

any failure by an Obligor to comply with its obligations under Clause 15 (Costs and expenses);

acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;

the taking, holding, protection or enforcement of the Transaction Security;

the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;

any default by an Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; or

acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Secured Assets (otherwise, in each case, than by reason of the relevant Security Agent’s, Receiver’s or Delegate’s gross negligence or wilful misconduct).

The Security Agent and every Receiver and Delegate may, in priority to any payment to the Secured Parties, indemnify itself out of the Secured Assets in respect of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 13.4 and shall have a lien on the Transaction Security and the proceeds of the enforcement of the Transaction Security for all moneys payable to it.

Mitigation by the lenders

Mitigation

Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality) or Clause 11 (Tax gross-up and indemnities) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate.

Clause 14.1(A) does not in any way limit the obligations of any Obligor under the Finance Documents.

Limitation of liability

The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 14.1 (Mitigation).

A Finance Party is not obliged to take any steps under Clause 14.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

Costs and expenses

Transaction expenses

this Agreement and any other documents referred to in this Agreement; and

any other Finance Documents executed after the date of the Original Facility Agreement.

Amendment costs

an Obligor requests an amendment, waiver or consent; or

an amendment is required pursuant to Clause 31.9 (Change of currency),

Enforcement costs

Structuring expense

Guarantee and indemnity

Guarantee and indemnity

guarantees to each Finance Party punctual performance by the Borrower of all the Borrower’s obligations under the Finance Documents;

undertakes with each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and

agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 16 (Guarantee and indemnity) if the amount claimed had been recoverable on the basis of a guarantee.

Continuing guarantee

Reinstatement

Waiver of defences

any time, waiver or consent granted to, or composition with, any Obligor or other person;

the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;

any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;

any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or

any insolvency or similar proceedings.

Guarantor Intent

Immediate recourse

Appropriations

refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and

hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 16 (Guarantee and indemnity).

Deferral of Guarantors’ rights

to be indemnified by an Obligor;

to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents;

to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;

to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 16.1 (Guarantee and indemnity);

to exercise any right of set-off against any Obligor; and/or

to claim or prove as a creditor of any Obligor in competition with any Finance Party.

Release of Guarantors’ right of contribution

that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

Additional security

Waiver of defences – California

any rights of subrogation, reimbursement, indemnification, and contribution and any other rights and defences that are or may become available to a guarantor or other surety by reason of California Civil Code Sections 2787 to 2855, inclusive;

any rights or defences a guarantor or other surety may have in respect of his or her or its obligations as a guarantor or other surety by reason of any election of remedies by a creditor;

any rights or defences a guarantor or other surety may have because the principal’s note or other obligation is secured by real property or an estate for years including, but not limited to, any rights or defences that are based upon, directly or indirectly, the application of California Code of Civil Procedure Sections 580a, 580b, 580d, or 726 to the principal’s note or other obligation;

all rights and defences that a guarantor may have because the debtor’s debt is secured by real property such that, among other things:

the creditor may collect from the guarantor without first foreclosing on any real or personal property collateral pledged by the debtor; or

if the creditor forecloses on any real property collateral pledged by the debtor:

the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price;

the creditor may collect from the guarantor even if the creditor, by foreclosing on the real property collateral, has destroyed any right the guarantor may have to collect from the debtor.

all rights and defences arising out of an election of remedies by a creditor, even though that election of remedies, such as a non-judicial foreclosure with respect to security for a guaranteed obligation, has destroyed the guarantor’s rights of subrogation and reimbursement against the principal by the operation of Section 580d of the California Code of Civil Procedure or otherwise.

Representations

Status

It is a corporation, duly incorporated and validly existing under:

the laws of the Cayman Islands, in the case of the Borrower;

the laws of England and Wales, in the case of the English Obligor; and

the laws of Delaware, US, in the case of the US Obligor.

It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.

Binding obligations

Non-conflict with other obligations

conflict with any law or regulation applicable to it;

conflict with its or any of its Subsidiaries’ constitutional documents;

conflict with any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets; or

result in the creation or imposition of (or enforceability of) any Security on the whole or any part of its undertaking or assets pursuant to the provisions of any agreement or documents other than the Security Agreement.

Power and authority

Validity and admissibility in evidence

to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and

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

Solvency

Purpose of Credit Extensions

No winding-up

Deduction of Tax

a Qualifying Lender:

falling within paragraph (1)(a) of the definition of “Qualifying Lender”; or

except where a Direction has been given under section 931 of the ITA in relation to the payment concerned, falling within paragraph (1)(b) of the definition of “Qualifying Lender”; or

falling within paragraph (2) of the definition of “Qualifying Lender” or;

a Treaty Lender and the payment is one specified in a direction given by the Commissioners of Revenue & Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488).

No filing or stamp taxes

No default

No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.

No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its or any of its Subsidiaries’ assets are subject which might have a Material Adverse Effect.

No misleading information

Financial statements

Its Original Financial Statements were prepared in accordance with IFRS² consistently applied.