Portions of this exhibit have been omitted pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. The omissions have been indicated by asterisks (“[***]”), and the omitted text has been filed separately...

Exhibit 2.3

Portions of this exhibit have been omitted pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. The omissions have been indicated by asterisks (“[***]”), and the omitted text has been filed separately with the Securities and Exchange Commission.

€775,000,000

AMENDED AND RESTATED FACILITY AGREEMENT

Originally dated 4 May 2010 as subsequently amended by an amendment agreement dated 27 April 2011 and as amended and restated by the Amendment and Restatement Agreement dated 16 December 2011 and as amended and restated by the Amendment and Restatement Agreement dated 26 July 2012

for

MARINE HARVEST ASA

arranged by

DNB BANK ASA
NORDEA BANK NORGE ASA
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
AND
ABN AMRO BANK N.V. (FORMERLY FORTIS BANK (NEDERLAND) N.V.)

with

DNB BANK ASA
NORDEA BANK NORGE ASA
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
AND
ABN AMRO BANK N.V. (FORMERLY FORTIS BANK (NEDERLAND) N.V.)

acting as Bookrunners

DNB BANK ASA

acting as Agent

and

DNB BANK ASA

acting as Security Agent

Ref: ONNB

CONTENTS

CLAUSE		PAGE

SECTION 1
INTERPRETATION
1.	Definitions and interpretation	1
SECTION 2
THE FACILITIES
2.	The Facilities	29
3.	Purpose	33
4.	Conditions of Utilisation	34
SECTION 3
UTILISATION
5.	Utilisation	36
6.	Optional Currencies	37
7.	Ancillary Facilities	38
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
8.	Repayment	43
9.	Prepayment and cancellation	45
SECTION 5
COSTS OF UTILISATION
10.	Interest	53
11.	Interest Periods	54
12.	Changes to the calculation of interest	55
13.	Fees	57
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14.	Tax gross-up and indemnities	59
15.	Increased Costs	62
16.	Other indemnities	63
17.	Mitigation by the Lenders	64
18.	Costs and expenses	65
SECTION 7
GUARANTEE
19.	Guarantee and indemnity	66
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
20.	Representations	71
21.	Information undertakings	76
22.	Financial covenants	81
23.	General undertakings	84
24.	Events of Default	93

SECTION 9
CHANGES TO PARTIES
25.	Changes to the Finance Parties	98
26.	Changes to the Obligors	106
SECTION 10
THE FINANCE PARTIES
27.	Role of the Agent, the Security Agent, the Arranger and the Bookrunner	108
28.	Conduct of business by the Finance Parties	115
29.	Sharing among the Finance Parties	115
SECTION 11
ADMINISTRATION
30.	Payment mechanics	119
31.	Set-off	122
32.	Notices	123
33.	Calculations and certificates	124
34.	Partial invalidity	125
35.	Remedies and waivers	125
36.	Amendments and waivers	125
37.	Confidentiality	127
38.	Counterparts	131
SECTION 12
GOVERNING LAW AND ENFORCEMENT
39.	Governing law	132
40.	Enforcement	132

THE SCHEDULES

SCHEDULE		PAGE

SCHEDULE 1 The Original Parties		133
SCHEDULE 2 Conditions precedent		136
SCHEDULE 3 Requests and Notices		147
SCHEDULE 4 Mandatory Cost formulae		150
SCHEDULE 5 Form of Transfer Certificate		153
SCHEDULE 6 Form of Accordion Increase Certificate		155
SCHEDULE 7 Form of accordion Lender Accession Agreement		156
SCHEDULE 8 Form of Assignment Agreement		157
SCHEDULE 9 Form of Accession Deed		160
SCHEDULE 10 Security agency provisions		162
SCHEDULE 11 Form of Compliance Certificate		170
SCHEDULE 12 Form of Confidentiality Undertaking		172
SCHEDULE 13 Signatures		177
SCHEDULE 14 Timetables		178
SCHEDULE 15 Permitted Existing Financial Indebtedness and Security		180
SCHEDULE 16 Hedging		182
SCHEDULE 17 Form of Hedging Bank Accession Deed		189
SCHEDULE 18 Form of Long Term Hedging Bank Accession Deed		190

SCHEDULE 19 Form of Resignation Letter	191
SCHEDULE 20 Alternative Reference Banks	192
SCHEDULE 21 Form of Increase Confirmation	195

iii

THIS AGREEMENT is originally dated 4 May 2010, was amended on 27 April 2011 and is further amended and restated pursuant to an Amendment and Restatement Agreement dated 26 July 2012 and made between:

(1) MARINE HARVEST ASA, a company incorporated in Norway with registration number 964 118 191 of Xxxxxxxxxxxxx 0, X-0000, Xxxx, Xxxxxx (the “Company” and the “Original Borrower”);

(2) THE COMPANIES listed in Part I of Schedule 1 (The Original Parties) as original guarantors (the “Original Guarantors”);

(3) DNB BANK ASA, NORDEA BANK NORGE ASA, COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. and ABN AMRO BANK N.V. (formerly Fortis Bank (Nederland) N.V.), as mandated lead arrangers (whether acting individually or together the “Arranger”);

(4) DNB BANK ASA, NORDEA BANK NORGE ASA, COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. and ABN AMRO BANK N.V. (formerly Fortis Bank (Nederland) N.V.), as bookrunners (whether acting individually or together the “Bookrunner”);

(5) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original Parties) as lenders (the “Original Lenders”);

(6) DNB BANK ASA as agent of the other Finance Parties (the “Agent”); and

(7) DNB BANK ASA as security agent for the Secured Parties (the “Security Agent”).

IT IS AGREED as follows:

SECTION 1

INTERPRETATION

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this Agreement:

“2006 Facility Agreement” means the facility agreement dated 24 March 2006 (as amended from time to time) between, amongst others, the Company and the Arranger.

“Acceding Lender” has the meaning given to that term in paragraph (a) of Clause 25.11 (Acceding Lender).

“Acceding Lender Accordion Amount” has the meaning given to that term in paragraph (h) of Clause 2.2 (Accordion feature — Increase of Facility B).

“Acceleration Date” means the date (if any) on which the Agent exercises any of its rights under Clause 24.14 (Acceleration) or the date (if any) on which the Facilities are cancelled in full under Clause 9.2 (Change of control).

“Acceptable Bank” means:

(a) a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by Standard & Poor’s Rating Services or

Fitch Ratings Ltd or A3 or higher by Xxxxx’x Investor Services Limited or a comparable rating from an internationally recognised credit rating agency; or

(b) any other bank or financial institution approved by the Agent.

“Accession Deed” means a document substantially in the form set out in Schedule 9 (Form of Accession Deed).

“Accordion Amount” has the meaning given to that term in paragraph (a) of Clause 2.2 (Accordion feature — Increase of Facility B).

“Accounting Quarter” means each period of three months ending 31 March, 30 June, 30 September and 31 December in any financial year of the Company.

“Acquisition” means the acquisition by the Company of Marine Harvest N.V. pursuant to a share purchase agreement dated 6 March 2006.

“Additional Borrower” means a company which becomes an Additional Borrower in accordance with Clause 26 (Changes to the Obligors).

“Additional Cost Rate” has the meaning given to it in Schedule 4 (Mandatory Cost formulae).

“Additional Debt” means, in relation to any Debt, any money, debt or liability due, owing or incurred under or in connection with:

(i) any refinancing, deferral or extension of that Debt;

(ii) any further advance which may be made under any document, agreement or instrument supplemental to any relevant Finance Document together with any related interest, fees and costs;

(iii) any claim for damages or restitution in the event of rescission of that Debt or otherwise in connection with any relevant Finance Document;

(iv) any claim against any Obligor flowing from any recovery by an Obligor or any liquidator, receiver, administrator, administrative receiver, compulsory manager or other similar officer of a payment or discharge in respect of that Debt on the grounds of preference or otherwise; and

(v) any amount (such as post-insolvency interest) which would be included in any of the above but for any discharge, non-provability, unenforceability or non-allowability of the same in any insolvency or other proceedings.

“Additional Guarantor” means a company which becomes an Additional Guarantor in accordance with Clause 26 (Changes to the Obligors).

“Additional Obligor” means an Additional Borrower or an Additional Guarantor.

“Affiliate” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

“Agent’s Spot Rate of Exchange” means the Agent’s spot rate of exchange for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11:00 a.m. on a particular day.

“Alternative Market Disruption Event” has the meaning given to that term in Clause 12.2 (Market disruption).

“Alternative Reference Bank Rate” has the meaning given to that term in Clause 12.3 (Alternative Reference Bank Rate).

“Alternative Reference Banks” means:

(i) in relation to a Loan in euro, the principal offices of the banks listed in Part I of Schedule 20 (Alternative Reference Banks);

(ii) in relation to a Loan in NOK the principal offices of the banks listed in Part III of Schedule 20 (Alternative Reference Banks); and

(iii) in relation to a Loan in a currency other than euro, the principal London offices of the banks listed in Part II of Schedule 20 (Alternative Reference Banks),

or such other banks as may be appointed by the Agent in consultation with the Company.

“Amendment and Restatement Agreement” means the amendment and restatement agreement amending and restating this Agreement and dated on or around the Effective Date (as defined therein) and made between, inter alia, the Company, the parties listed therein as obligors, the parties listed therein as lenders, the Agent and the Security Agent.

“Ancillary Commitment” means, in relation to an Ancillary Lender and an Ancillary Facility, the maximum Base Currency Amount from time to time agreed (whether or not subject to satisfaction of conditions precedent and whether or not utilised) to be made available by that Ancillary Lender under an Ancillary Facility and authorised under Clause 7 (Ancillary Facilities), to the extent not cancelled or reduced under this Agreement.

“Ancillary Facility” means an ancillary facility made available by an Ancillary Lender in accordance with Clause 7 (Ancillary Facilities).

“Ancillary Facility Document” means a document setting out the terms of an Ancillary Facility.

“Ancillary Facility Request” means a notice substantially in the form set out in Part III of Schedule 3 (Requests).

“Ancillary Lender” means each Lender (or Affiliate of a Lender) which makes available an Ancillary Facility in accordance with Clause 7 (Ancillary Facilities).

“Ancillary Outstandings” means, at any time and in relation to an Ancillary Facility, the aggregate (calculated in the Base Currency) of the following amounts outstanding at that time under that Ancillary Facility:

(a) all amounts of (or equivalent to) principal then outstanding under any overdraft, cheque clearing, automatic payment, cash pooling, ordinary, bilateral local loan or other current

account facility after deducting any credit balance which the Ancillary Lender may have set off against that principal;

(b) the maximum potential liability under all guarantees, bonds and letters of credit issued under that Ancillary Facility;

(c) in relation to any derivative transaction entered into for protection against or benefit from fluctuation in any rate or price, the marked to market value of the Ancillary Lender’s exposure under that transaction; and

(d) in relation to any other Ancillary Facility, such other amount as fairly represents the aggregate exposure of the Ancillary Lender under that Ancillary Facility,

in each case determined by the relevant Ancillary Lender in accordance with its usual practice at that time for calculating its exposure under similar facilities or transactions (acting reasonably and after consultation with the Agent).

For the purposes of this definition:

(i) in relation to any utilisation denominated in the Base Currency, the amount of that utilisation (determined as described in paragraphs (a) to (d) above) shall be used; and

(ii) in relation to any utilisation not denominated in the Base Currency, the equivalent (calculated as specified in the relevant Ancillary Facility Document or, if not so specified, as the relevant Ancillary Lender may specify, in each case in accordance with its usual practice at that time for calculating that equivalent (acting reasonably and after consultation with the Agent)) in the Base Currency of the amount of that utilisation (determined as described in paragraphs (a) to (d) above) shall be used.

“Applicable Accounting Principles” means GAAP and practices and financial reference periods used in the Original Financial Statements.

“Assignment Agreement” means an agreement substantially in the form set out in Schedule 8 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee.

“Authorisation” means an authorisation, consent, approval, resolution, licence, aquacultural licence, exemption, filing, notarisation or registration.

“Availability Period” means:

(i) in relation to Facility A, the period from and including the date of this Agreement to the date which is 20 Business Days from the date of this Agreement;

(ii) in relation to Facility B, the period from and including the date of this Agreement to and including the Business Day one month before the Termination Date; and

(iii) in relation to Facility C, the period from and including the date of this Agreement to and including the Business Day one month before the Termination Date.

“Available Ancillary Commitment” means, in relation to an Ancillary Facility, an Ancillary Lender’s Ancillary Commitment less the Ancillary Outstandings in relation to that Ancillary Facility.

“Available Commitment” means (subject to Clause 7.11 (Affiliates of Lenders as Ancillary Lenders), in relation to a Facility, a Lender’s Commitment under that Facility minus:

(a) the Base Currency Amount of its participation in any outstanding Loans under that Facility;

(a) in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Loans that are due to be made under that Facility on or before the proposed Utilisation Date; and

(b) in the case of Facility B and/or Facility C only, the Base Currency Amount of its Ancillary Commitment in relation to any new Ancillary Facility that is due to be made available under Facility B or Facility C respectively on or before the proposed Utilisation Date of that Facility,

other than, in relation to any proposed Utilisation under Facility B or Facility C only, that Lender’s participation in any Facility B Loans or Facility C Loans (as applicable) that are due to be repaid or prepaid on or before the proposed Utilisation Date.

“Available Facility” means, in relation to a Facility, the aggregate for the time being of each Lender’s Available Commitment in respect of that Facility.

“Base Currency” means:

(i) in respect of Facility A and Facility B, euro; and

(ii) in respect of Facility C, USD.

“Base Currency Amount” means:

(i) in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower for that Loan (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent’s Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request); and

(ii) in relation to an Ancillary Commitment, the amount specified in the notice delivered to the Agent by the Company pursuant to paragraph (a) of Clause 7.3 (Request for Ancillary Facilities),

adjusted to reflect any repayment, prepayment, consolidation or division of the Loan or (as the case may be) cancellation or reduction of the Ancillary Commitment.

“Base Reference Bank Rate” means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Base Reference Banks:

(i) in relation to EURIBOR, as the rate at which the relevant Base Reference Bank could borrow funds in the European interbank market; or

(ii) in relation to LIBOR, as the rate at which the relevant Base Reference Bank could borrow funds in the London interbank market; or

(iii) in relation to NIBOR, as the rate at which the relevant Base Reference Bank could borrow funds in the Oslo interbank market,

in the relevant currency and for the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period.

“Base Reference Banks” means:

(i) in relation to EURIBOR, the principal office in Utrecht of Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., the principal Oslo offices of DNB Bank ASA and Nordea Bank Norge ASA and the principal office in Amsterdam of ABN AMRO Bank N.V.;

(ii) in relation to LIBOR, the principal London offices of Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., DNB Bank ASA and Nordea Bank Finland Plc and the principal Amsterdam office of ABN AMRO Bank N.V.; and

(iii) in relation to NIBOR, the principal Oslo offices of DNB Bank ASA and Nordea Bank Norge ASA, the principal London offices of Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., and the principal Amsterdam office of ABN AMRO Bank N.V.,

or such other banks as may be appointed by the Agent in consultation with the Company.

“Borrower” means a Facility A Borrower, Facility B Borrower or a Facility C Borrower, unless it has ceased to be a Borrower in accordance with Clause 26 (Changes to the Obligors).

“Break Costs” means the amount (if any) by which:

(i) the interest, excluding the Margin, which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

(ii) the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

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

(a) (in relation to any date for payment or purchase of euro) any TARGET Day; or

(b) (in relation to any date for payment or purchase of a currency other than euro) the principal financial centre of the country of that currency; and

in any case shall not include 24 December.

“Charged Assets” means the assets over which Security is expressed to be created pursuant to any Security Document.

“Chargor” means any person expressed to create Security pursuant to any Security Document.

“Chilean Guarantor” means a Guarantor incorporated in the Republic of Chile.

“Commencement Date” has the meaning given to it in Clause 7.3 (Request for Ancillary Facilities).

“Commitment” means a Facility A Commitment, Facility B Commitment, Facility C Commitment or an Ancillary Commitment.

“Compliance Certificate” means a certificate substantially in the form set out in Schedule 11 (Form of Compliance Certificate).

“Confidential Information” means all information relating to the Company, any Obligor, the Group, the Finance Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

(a) any member of the Group or any of its advisers; or

(b) another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:

(i) is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 37 (Confidentiality); or

(iii) is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisors; or

(iv) is known by that Finance Party before the date the information is disclosed to it in accordance with paragraph (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 the Group 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.

“Confidentiality Undertaking” means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 12 (Form of Confidentiality Undertaking) or in any other form agreed between the Company and the Agent.

“Debt” means any Senior Debt or Hedging Debt.

“Default” means an Event of Default or any event or circumstance specified in Clause 24 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the

making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

“Defaulting Lender” means any Lender:

(a) which has failed to make its participation in a Loan available or has notified the Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders’ participation);

(b) which has otherwise rescinded or repudiated a Finance Document; or

unless, in the case of paragraph (a) above:

(i) its failure to pay is caused by:

(A) administrative or technical error; or

(B) a Disruption Event; and

payment is made within five Business Days of its due date; or

(ii) the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

“Discharge Date” means the date on which the Security Agent is satisfied that all Senior Debt and Hedging Debt has been fully and irrevocably paid or discharged and all commitments of the Finance Parties and the Hedging Banks in respect of the Senior Debt or, as the case may be, the Hedging Debt have expired or been cancelled.

“Disruption Event” means either or both of:

(a) 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 Facilities (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

(b) 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:

(i) from performing its payment obligations under the Finance Documents; or

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

(and which (in either such case)) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

“Dutch Borrower” means any Additional Borrower incorporated in the Netherlands.

“Dutch Financial Supervision Act” means the Dutch Financial Supervision Act (Wet op het financieel toezicht) dated 28 September 2006 published in the Dutch government gazette nr. 475 on 31 October 2006, as amended from time to time.

“Dutch Guarantor” means any Guarantor incorporated in the Netherlands.

“Dutch Obligor” means a Dutch Borrower or a Dutch Guarantor.

“EBITDA” has the meaning given to it in Clause 22.5 (Definitions).

“Early Termination Date” means an Early Termination Date as defined in the relevant Hedging Document or Long Term Hedging Document resulting from:

(a) a Termination Event as defined in that Hedging Document or Long Term Hedging Document; or

(b) when an Obligor is the Defaulting Party as defined in that Hedging Document or Long Term Hedging Document, an Event of Default as defined in that Hedging Document or Long Term Hedging Document.

“Enforcement Action” means:

(a) in relation to any Debt or Long Term Hedging Debt, any action of any kind to:

(i) demand payment, declare prematurely due and payable or otherwise seek to accelerate payment of or place on demand all or any of that Debt or Long Term Hedging Debt;

(ii) recover all or any of that Debt or Long Term Hedging Debt (including by exercising any set-off, save as required by law);

(iii) exercise or enforce any right against any surety or any other right under any other document, agreement or instrument in relation to (or given in support of) all or any of that Debt or Long Term Hedging Debt (including under the Security Documents);

(iv) petition for (or take or support any other step which may lead to) an Insolvency Event in relation to any Obligor; or

(v) start any legal proceedings against any Obligor; and

(c) in relation to any Hedging Debt or Long Term Hedging Debt, any action of any kind to declare an Early Termination Date under any Hedging Document or Long Term Hedging Document or demand payment of any amount which would become payable following an Early Termination Date.

“Environment” means living organisms including the ecological systems of which they form part and the following media:

(a) air (including air within natural or man-made structures, whether above or below ground);

(b) water (including territorial, coastal and inland waters, water under or within land and water in drains and sewers); and

“Environmental Law” means all laws and regulations of any relevant jurisdiction which:

(a) have as a purpose or effect the protection of, and/or prevention of harm or damage to, the Environment;

(b) provide remedies or compensation for harm or damage to the Environment; or

“Environmental Licence” means any Authorisation required at any time under Environmental Law.

“EURIBOR” means, in relation to any Loan in euro:

(a) the applicable Screen Rate; or

(b) (if no Screen Rate is available for the Interest Period of that Loan) the Base Reference Bank Rate,

as of the Specified Time on the Quotation Day for euro and for a period comparable to the Interest Period of that Loan.

“Event of Default” means any event or circumstance specified as such in Clause 24 (Events of Default).

“Facility” means Facility A, Facility B or Facility C.

“Facility A” means the term loan facility made available under this Agreement as described in paragraph (a) of Clause 2.1 (The Facilities).

“Facility A Borrower” means the Original Facility A Borrower.

“Facility A Commitment” means:

(a) in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Facility A Commitment” in Part II of Schedule 1 (The Original Parties) and the amount of any other Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.3 (Increase);

(b) in relation to any other Lender, the amount in the Base Currency of any Facility A Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.3 (Increase),

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

“Facility A Lender” means:

(a) any Original Facility A Lender; and

(b) any bank, financial institution, trust, fund or other entity which has become a Facility A Lender in accordance with Clause 25 (Changes to the Finance Parties),

which in each case has not ceased to be a Facility A Lender in accordance with this Agreement.

“Facility A Loan” means a loan made or to be made under Facility A or the principal amount outstanding for the time being of that loan.

“Facility A Repayment Date” means each date specified in Clause 8.1 (Repayment of Facility A Loans) for the payment of a Facility A Repayment Instalment.

“Facility A Repayment Instalment” means each instalment for repayment of the Facility A Loan specified in Clause 8.1 (Repayment of Facility A Loans).

“Facility B” means the revolving loan facility made available under this Agreement as described in paragraph (b) of Clause 2.1 (The Facilities), part of which may be designated as Ancillary Facilities in accordance with Clause 7 (Ancillary Facilities).

“Facility B Borrower” means:

(a) any Original Facility B Borrower; and

(b) any Additional Borrower under Facility B.

“Facility B Commitment” means:

(a) in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Facility B Commitment” in Part II of Schedule 1 (The Original Parties) and the amount of any other Facility B Commitment transferred to it under this Agreement, increased pursuant to Clause 2.2 (Accordion feature — Increase of Facility B) or assumed by it in accordance with Clause 2.3 (Increase); and

(b) in relation to any other Lender, the amount in the Base Currency of any Facility B Commitment transferred to it under this Agreement, increased pursuant to Clause 2.2 (Accordion feature — Increase of Facility B) or assumed by it in accordance with Clause 2.3 (Increase),

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

“Facility B Lender” means:

(a) any Original Facility B Lender; and

(b) any bank, financial institution, trust, fund or other entity which has become a Facility B Lender in accordance with Clause 25 (Changes to the Finance Parties),

which in each case has not ceased to be a Facility B Lender in accordance with the terms of this Agreement.

“Facility B Loan” means a loan made or to be made under Facility B or the principal amount outstanding for the time being of that loan.

“Facility C” means the revolving loan facility made available under this Agreement as described in paragraph (c) of Clause 2.1 (The Facilities), part of which may be designated as Ancillary Facilities in accordance with Clause 7 (Ancillary Facilities).

“Facility C Borrower” means any Additional Borrower under Facility C.

“Facility C Commitment” means:

(a) in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Facility C Commitment” in Part II of Schedule 1 (The Original Parties) and the amount of any other Facility C Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.3 (Increase); and

(b) in relation to any other Lender, the amount in the Base Currency of any Facility C Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.3 (Increase),

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

“Facility C Lender” means:

(a) any Original Facility C Lender; and

(b) any bank, financial institution, trust, fund or other entity which has become a Facility C Lender in accordance with Clause 25 (Changes to the Finance Parties),

which in each case has not ceased to be a Facility C Lender in accordance with this Agreement.

“Facility C Loan” means a loan made or to be made under Facility C or the principal amount outstanding for the time being of that loan.

“Facility Office” means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement.

“Fee Letter” means any letter or letters dated on or about the date of this Agreement between, as the case may be, the Arranger and the Company, the Agent and the Company or the Security Agent and the Company setting out any of the fees referred to in paragraph (e) of Clause 2.3 (Increase), Clause 13 (Fees) or under any other Finance Document.

“Finance Document” means this Agreement, any Ancillary Facility Document, each Fee Letter, any Hedging Document, the Hedging Letter, any Long Term Hedging Document, any Accession Deed, any Resignation Letter, any Security Document and any other document designated as such by the Agent and the Company provided that where the term “Finance Document” is used in, and construed for the purposes of, this Agreement, a Hedging Document or Long Term Hedging Document shall be a Finance Document only for the purposes of:

(a) the definition of “Material Adverse Effect”;

(b) the definition of “Security Document”;

(d) (in the case of a Hedging Document only) Clause 19 (Guarantee and Indemnity);

(e) Clause 20 (Representations);

(f) Clause 24 (Events of Default) (other than Clause 24.11 (Repudiation) and Clause 24.14 (Acceleration));

(g) Clause 27.16 (Credit appraisal by the Secured Parties); and

(h) Clause 29.7 (Parallel Debt).

“Finance Party” means the Agent, an Ancillary Lender (including any Affiliate of a Lender which is an Ancillary Lender), the Arranger, the Bookrunner, a Lender or the Security Agent.

“Finance Party Insolvency Event” means any event described in Clause 24.6 (Insolvency) or Clause 24.7 (Insolvency proceedings).

“Financial Indebtedness” means any indebtedness for or in respect of:

(a) moneys borrowed and debit balances at banks or other financial institutions;

(b) any acceptance under any acceptance credit or xxxx discounting facility or dematerialised equivalent;

(c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument, including for the avoidance of doubt in respect of a convertible bond, any amount raised pursuant to such convertible bond to the extent it has not been converted into equity;

(d) the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease;

(e) receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis) that meet any requirement for de-recognition under the Applicable Accounting Principles;

(f) any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;

(g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);

(h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of (i) an underlying liability of an entity which is not a member of the Group which liability would fall within one of the other paragraphs of this definition or (ii) any liabilities of any member of the Group relating to any post-retirement benefit scheme;

(i) any amount raised by the issue of redeemable shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under the Applicable Accounting Principles); and

(j) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above and provided that any of the items referred to in

this definition of Financial Indebtedness, including this paragraph (j), shall only be counted once for this purpose.

“Financial Projections” means the financial statements including the KPMG report dated 20 January 2010, hereunder the bank case, outlining the financial projections of the Group for the period up to 2014 prepared by the Company in connection with a meeting dated 4 February 2010, or any updated financial projections provided at the request of the Agent.

“Further Lender Accordion Amount” has the meaning given to that terms in paragraph (h) of Clause 2.2 (Accordion feature — Increase of Facility B).

“GAAP” means:

(a) in relation to the consolidated financial statements of the Group, generally accepted accounting principles, standards and practices in Norway, including IFRS; and

(b) in relation to any member of the Group, generally accepted accounting principles, standards and practices in its jurisdiction, including IFRS when adopted.

“Gearing Ratio” has the meaning given to it in Clause 22.5 (Definitions).

“Group” means the Company and its Subsidiaries for the time being.

“Guarantor” means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 26 (Changes to the Obligors).

“Hazardous Substance” means any waste, pollutant, contaminant or other substance (including any liquid, solid, gas, ion, living organism or noise) that may be harmful to human health or other life or the Environment or a nuisance to any person or that may make the use or ownership of any affected land or property more costly.

“Hedging Bank” means a Lender (or an Affiliate of a Lender) which has become a party to this Agreement as a Hedging Bank in accordance with Clause 25.12 (Accession of Hedging Banks) and which has not ceased to be a Hedging Bank in accordance with this Agreement.

“Hedging Bank Accession Deed” means a document substantially in the form set out in Schedule 17 (Form of Hedging Bank Accession Deed).

“Hedging Debt” means all present and future moneys, debts and liabilities due, owing or incurred by any Obligor to any Hedging Bank under or in connection with any Hedging Document (in each case, whether alone or jointly, or jointly and severally, with any other person, whether actually or contingently, and whether as principal, surety or otherwise) together with any related Additional Debt.

“Hedging Documents” means the documents entered into between a member of the Group and a Hedging Bank for the purpose of implementing the hedging strategy required by the Hedging Letter and approved by the Security Agent under Clause 25.12 (Accession of Hedging Banks) and, for the avoidance of doubt, including any documents or confirmations entered into between a member of the Group and a Hedging Bank prior to the date of the relevant Hedging Bank Accession Deed and subsequently agreed by the relevant Hedging Bank to be governed by, or referring to, a new ISDA master agreement.

“Hedging Letter” means a letter entered into within three months after the first Utilisation (as amended from time to time with the approval of all the Lenders), between the Arranger and the Company, setting out the interest rate and/or currency hedging strategy agreed in relation to the Facilities in connection with Clause 23.19 (Hedging).

“Hedging Recoveries” means the aggregate of all moneys and other assets received or recovered (whether by exercising any set-off or otherwise) from time to time by any Hedging Bank under or in connection with any Hedging Debt.

“Holding Company” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

“IFRS” means International Financial Reporting Standards issued and/or adopted by the International Accounting Standards Board.

“Impaired Agent” means the Agent at any time when:

(a) it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

(b) the Agent otherwise rescinds or repudiates a Finance Document;

(c) (if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of “Defaulting Lender”; or

(d) A Finance Party Insolvency Event has occurred and is continuing with respect to the Agent;

unless, in the case of paragraph (a) above:

(i) its failure to pay is caused by:

(A) administrative or technical error; or

(B) a Disruption Event; and

payment is made within five Business Days of its due date; or

(ii) the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

“Increase Confirmation” means a confirmation substantially in the form set out in Schedule 21 (Form of Increase Confirmation).

“Increase Lender” has the meaning given to that term in paragraph 2.3(a) of Clause 2.3 (Increase).

“Information Package” means the KPMG report dated 20 January 2010 and Financial Projections in the bank case presented by the Company in a meeting dated 4 February 2010.

“Insolvency Event” in relation to a Finance Party means that the Finance Party:

(a) is dissolved (other than pursuant to a consolidation, amalgamation or merger);

(b) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

(d) institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

(e) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

(i) results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

(ii) is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

(f) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

(g) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets;

(h) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

(i) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or

(j) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

“Intellectual Property” means all trade marks, service marks, trade names, domain names, logos, get-up, patents, inventions, registered and unregistered design rights, copyrights, topography rights, database rights, rights in confidential information and know-how, and any associated or similar rights anywhere in the world, which it now or in the future owns or (to the

extent of its interest) in which it now or in the future has an interest (in each case whether registered or unregistered and including any related licences and sub-licences of the same granted by it or to it, applications and rights to apply for the same).

“Interest Period” means, in relation to a Loan, each period determined in accordance with Clause 11 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 10.3 (Default interest).

“Irish 1963 Act” means the Companies Xxx 0000 (Ireland).

“Irish 1990 Act” means the Companies Xxx 0000 (Ireland).

“Irish Amendment Xxx 0000” means the Companies (Amendment) Xxx 0000 (Ireland).

“Lender” means:

(a) a Facility A Lender, a Facility B Lender or a Facility C Lender; and

(b) any bank, financial institution, trust, fund or other entity which has become a party as a Lender in accordance with Clause 2.3 (Increase) or Clause 25 (Changes to the Finance Parties).

“Lender Accordion Amount” has the meaning given to that term in paragraph (a) of Clause 2.2 (Accordion feature — Increase in Facility B).

“LIBOR” means, in relation to any Loan:

(a) the applicable Screen Rate; or

(b) (if no Screen Rate is available for the currency or Interest Period of that Loan) the Base Reference Bank Rate,

as of the Specified Time on the Quotation Day for the currency of that Loan and a period comparable to the Interest Period of that Loan.

“LMA” means the Loan Market Association.

“Loan” means a Facility A Loan, a Facility B Loan or a Facility C Loan.

“Long Term Hedging Bank” means a Lender which has become a party to this Agreement as a Long Term Hedging Bank in accordance with Clause 25.13 (Accession of Long Term Hedging Banks) and which has not ceased to be a Long Term Hedging Bank in accordance with this Agreement.

“Long Term Hedging Bank Accession Deed” means a document substantially in the form set out in Schedule 18 (Form of Long Term Hedging Bank Accession Deed).

“Long Term Hedging Debt” means all present and future moneys, debts and liabilities due, owing or incurred by any Obligor to any Long Term Hedging Bank under or in connection with any Long Term Hedging Document (in each case, whether alone or jointly, or jointly and severally, with any other person, whether actually or contingently, and whether as principal, surety or otherwise).

“Long Term Hedging Documents” means the documents entered into between a member of the Group and a Long Term Hedging Bank, for the purpose of implementing the long term hedging strategy permitted under 23.19 (Hedging) and required by the Hedging Letter and approved by the Security Agent under Clause 25.13 (Accession of Long Term Hedging Banks).

“Long Term Hedging Recoveries” means the aggregate of all moneys and other assets received or recovered (whether by exercising any set-off or otherwise) from time to time by any Long Term Hedging Bank under or in connection with any Long Term Hedging Debt.

“Long Term Hedging Security Documents” means the share pledges over each of Marine Harvest Holding AS and Marine Harvest N.V. and ranking junior to the existing Security Documents in place in respect of such shares at the time the relevant Long Term Hedging Security Documents are entered into.

“Majority Facility A Lenders” means, at any time, a Facility A Lender or Facility A Lenders whose Available Commitments under Facility A and participations in the Facility A Loans then outstanding aggregate more than 662/3 per cent. of the Available Facility under Facility A and the Facility A Loans then outstanding.

“Majority Facility B Lenders” means, at any time, a Facility B Lender or Facility B Lenders whose Available Commitments under Facility B and participations in the Facility B Loans then outstanding aggregate more than 662/3 per cent. of the Available Facility under Facility B and the Facility B Loans then outstanding.

“Majority Facility C Lenders” means, at any time, a Facility C Lender or Facility C Lenders whose Available Commitments under Facility C and participations in the Facility C Loans then outstanding aggregate more than 662/3 per cent. of the Available Facility under Facility C and the Facility C Loans then outstanding.

“Majority Lenders” means:

(a) in relation to any matter relating to enforcement or release of the Security created by the Security Documents:

(i) if there are no Loans then outstanding, a Lender or Lenders whose Commitments aggregate more than 662/3 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 662/3 per cent. of the Total Commitments immediately prior to the reduction); or

(ii) at any other time, a Lender, Lenders or Hedging Banks whose participations in the Loans then outstanding and any amounts outstanding under the Hedging Documents aggregate more than 662/3 per cent. of all the Loans and amounts under the Hedging Documents then outstanding; and

(b) in relation to any other matter:

(ii) at any other time, a Lender or Lenders whose participations in the Loans then outstanding aggregate more than 662/3 per cent. of all the Loans then outstanding.

“Mandatory Cost” means the percentage rate per annum calculated by the Agent in accordance with Schedule 4 (Mandatory Cost formulae).

“Margin” means, in relation to each Facility, in relation to a particular Interest Period, the rate per annum determined by reference to the Gearing Ratio as shown in the most recent Compliance Certificate received by the Agent, in accordance with the following table:

Gearing Ratio		Margin (per cent. p.a.)
Equal to or lower than [***]		[***]
Higher than [*], but lower than or equal to [*]		[***]
Higher than [*], but lower than or equal to [*]		[***]
Higher than [*], but lower than or equal to [*]		[***]
Higher than [*], but lower than or equal to [*]		[***]

However:

(a) from the date of this Agreement until the date which is five Business Days after the delivery of the first Compliance Certificate for the quarter ending 30 June 2010 in accordance with Clause 21.2 (Compliance Certificate), the Margin will be [***] per cent. per annum from which date the Margin shall be adjusted to the appropriate rate in accordance with the above table;

(b) any adjustment in the Margin shall take effect from the date falling five Business Days after receipt by the Agent of a Compliance Certificate showing that an adjustment to the Margin is appropriate in accordance with the above table (and the financial statements with which that Compliance Certificate is required by this Agreement to be delivered) in accordance with Clause 21.2 (Compliance Certificate);

(c) if the Margin for a Utilisation is reduced for any period but the annual audited financial statements of the Group (and the Compliance Certificate with which they are required by this Agreement to be delivered) subsequently received by the Agent do not confirm the basis for that reduction, that reduction shall be reversed with retrospective effect; and

(d) while an Event of Default is continuing the Margin will revert to [***] per cent. per annum.

“Marine Harvest N.V.” means Marine Harvest N.V., a company duly organised under the laws of the Netherlands, registered under registration number 32105246.

“Material Adverse Effect” means a material adverse effect on or material adverse change in:

(a) the financial condition or business of the Company or the consolidated financial condition or business of the Group taken as a whole;

(b) the ability of any Obligor to perform and comply with its obligations under any Finance Document;

(d) the validity, legality or enforceability of any Security expressed to be created pursuant to any Security Document or on the priority and ranking of any of that Security.

“Material Subsidiary” means:

(a) each Obligor;

(b) any wholly-owned member of the Group that holds shares in an Obligor;

(c) a Subsidiary of the Company the gross assets or turnover (excluding intra-group items) of which (unconsolidated where that Subsidiary itself has Subsidiaries) as at the date as at which its latest financial statements were prepared or, as the case may be, for the financial period to which those financial statements relate account for 5 per cent. or more of the consolidated gross assets or turnover (excluding intra-group items) of the Group as calculated by reference to the latest audited consolidated financial statements of the Group; or

(d) a Subsidiary of the Company to which it has been transferred (whether in a single transaction or a series of transactions (whether related or not)) the whole or substantially the whole of the assets of a Subsidiary which immediately prior to such transaction(s) was a Material Subsidiary.

For the purposes of this definition:

(i) if a Subsidiary becomes a Material Subsidiary under paragraph (d) above, the Material Subsidiary by which the relevant transfer was made shall, subject to paragraph (a), (b) or (c) above, cease to be a Material Subsidiary; and

(ii) if a Subsidiary is acquired by the Company after the end of the financial period to which the latest audited consolidated financial statements of the Group relate, those financial statements shall be adjusted as if that Subsidiary had been shown in them by reference to its then latest audited financial statements until audited consolidated financial statements of the Group for the financial period in which the acquisition is made have been prepared.

“Month” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

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

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

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

The above rules will only apply to the last Month of any period.

“NIBOR” means, in relation to any Loan in NOK:

(a) the applicable Screen Rate; or

as of the Specified Time on the Quotation Day for NOK and a period comparable to the Interest Period of that Loan.

“Obligor” means a Borrower or a Guarantor.

“Optional Currency” means a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.3 (Conditions relating to Optional Currencies).

“Original Facility A Borrower” means the Borrower listed in Schedule 1Part I of Schedule 1 (The original Parties) as the Facility A Borrower.

“Original Facility A Lender” means a Lender listed in Part II of Schedule 1 (The original Parties) as having a Facility A Commitment.

“Original Facility B Borrower” means a Borrower listed in Schedule 1Part I of Schedule 1 (The original Parties) as a Facility B Borrower.

“Original Facility B Lender” means a Lender listed in Part II of Schedule 1 (The original Parties) as having a Facility B Commitment.

“Original Facility C Borrower” means a Borrower listed in Schedule 1Part I of Schedule 1 (The original Parties) as a Facility C Borrower.

“Original Facility C Lender” means a Lender listed in Part II of Schedule 1 (The original Parties) as having a Facility C Commitment.

“Original Financial Statements” means the audited consolidated financial statements of the Group for the financial year ended 2009.

“Original Obligor” means an Original Borrower or an Original Guarantor.

“Participating Member State” means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

“Party” means a party to this Agreement.

“Perfection Requirements” means the making of the appropriate registrations, filings or notifications of the Security Documents as specifically contemplated by any legal opinion

delivered pursuant to Clause 4 (Conditions of Utilisation) or Clause 26 (Changes to the Obligors).

“Permitted Acquisition” has the meaning given to that term in paragraph (b) of Clause 23.13 (Acquisitions and investments).

“Permitted Existing Financial Indebtedness” means the existing debt of the Group as at the date of this Agreement permitted to be retained as set out in Schedule 15 (Permitted Existing Financial Indebtedness and Security).

“Prepayment Account” means such account of the Company with the Agent as the Agent may designate for this purpose.

“Professional Market Party” means a professional market party (professionele marktpartij) within the meaning of the Dutch Financial Supervision Act.

“Quotation Day” means, in relation to any period for which an interest rate is to be determined:

(a) (if the currency is euro) two TARGET Days before the first day of that period;

(b) (if the currency is Sterling) the first day of that period; or

unless market practice differs in the Relevant Interbank Market for a currency, in which case the Quotation Day for that currency will be determined by the Agent in accordance with market practice in the Relevant Interbank Market (and if quotations for that currency and period would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).

“Related Fund” in relation to a fund (the “first fund”), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.

“Relevant Interbank Market” means, in relation to euro, the European interbank market and, in relation to any other currency, the London interbank market.

“Relevant Period” has the meaning given to it in Clause 22 (Financial covenants).

“Repeating Representations” means each of the representations set out in Clauses 20.1 (Status), 20.2 (Binding obligations), 20.3 (Non-conflict with other obligations), 20.4 (Power and authority), 20.6 (Governing law and enforcement), 20.9 (No default), 20.11 (Financial statements) and 20.12 (Pari passu ranking).

“Representative” means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

“Reservations” means any general principles of law limiting the obligations of any Obligor which are specifically referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation) or Clause 26 (Changes to the Obligors).

“Resignation Letter” means a letter substantially in the form set out in Schedule 19 (Form of Resignation Letter).

“Request” has the meaning given to that term in paragraph (b) of Clause 2.2 (Accordion feature — Increase of Facility B)

“Requested Increase Amount” has the meaning given to that term in paragraph (b) of Clause 2.2 (Accordion feature — Increase of Facility B)

“Rollover Loan” means one or more Facility B Loans or Facility C Loans:

(a) made or to be made on the same day that one or more maturing Facility B Loans or Facility C Loans (as applicable) is or are due to be repaid;

(b) the aggregate amount of which is equal to or less than the maturing Facility B Loan(s) or Facility C Loan(s) (as applicable) (unless it is more than the maturing Facility B Loan(s) or Facility C Loan(s) (as applicable) solely because it arose as a result of the operation of Clause 6.2 (Unavailability of a currency));

(c) in the same currency as the maturing Facility B Loan(s) or Facility C Loan(s) (as applicable) (unless it arose as a result of the operation of Clause 6.2 (Unavailability of a currency)); and

(d) made or to be made to the same Borrower for the purpose of refinancing the maturing Facility B Loan(s) or Facility C Loan(s) (as applicable).

“Screen Rate” means:

(a) in relation to LIBOR, the British Bankers’ Association Interest Settlement Rate for the relevant currency and period;

(b) in relation to EURIBOR, the percentage rate per annum determined by the Banking Federation of the European Union for the relevant period; and

displayed on the appropriate page of the Reuters screen. If the agreed page is replaced or service ceases to be available, the Agent may specify another page or service displaying the appropriate rate after consultation with the Company and the Lenders.

“Secured Party” means a Finance Party or a Hedging Bank or, in the case of the Long Term Hedging Security Documents only, a Finance Party, a Hedging Bank or (other than for the purpose of Clause 19 (Guarantee and Indemnity)) a Long Term Hedging Bank.

“Security” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.

“Security Document” means any security document that may at any time be given as security for any of the Debt pursuant to or in connection with any Finance Document, Hedging Document or Long Term Hedging Document, including, without limitation, the Security Documents listed in paragraph 2 of Part I of Schedule 2 (Conditions precedent).

“Security Property” has the meaning given to it in Schedule 10 (Security agency provisions).

“Selection Notice” means a notice substantially in the form set out in Part II of Schedule 3 (Requests) given in accordance with Clause 11 (Interest Periods) in relation to Facility A.

“Senior Debt” means all present and future moneys, debts and liabilities due, owing or incurred by any Obligor to any Finance Party under or in connection with any Senior Finance Document (whether alone or jointly, or jointly and severally, with any other person, whether actually or contingently, and whether as principal, surety or otherwise), together with any related Additional Debt but excluding any Hedging Debt or Long Term Hedging Debt.

“Senior Finance Documents” means the Finance Documents other than the Hedging Documents and the Long Term Hedging Documents.

“Guaranteed Finance Party” means a Finance Party or a Hedging Bank.

“Senior Recoveries” means the aggregate of all moneys and other assets received or recovered (whether by exercising any set-off or otherwise) from time to time by any Finance Party under or in connection with any Senior Debt.

“Separate Loan” has the meaning given to that term in Clause 8.2 (Repayment of Facility B Loans and Facility C Loans).

“Specified Time” means a time determined in accordance with Schedule 14 (Timetables).

“Subsidiary” means, in relation to any company, corporation or other legal entity (a “holding company”), a company, corporation or other legal entity:

(a) which is controlled, directly or indirectly, by the holding company;

(b) more than half the issued share capital of which is beneficially owned, directly or indirectly, by the holding company; or

and, for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to determine the composition of the majority of its board of directors or equivalent body.

“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.

“TARGET Day” means any day on which TARGET2 is open for the settlement of payments in euro.

“Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

“Termination Date” means, in respect of each Facility, 31 January 2015.

“Total Ancillary Commitments” means the aggregate of the Ancillary Commitments.

“Total Facility B Ancillary Limit” means €100,000,000.

“Total Facility C Ancillary Limit” means USD 66,000,000.

“Total Commitments” means the aggregate of the Total Facility A Commitments, the Total Facility B Commitments, the Total Facility C Commitments and the Total Ancillary Commitments, being €600,000,000 at 4 May 2010, and, following any increase in the Facility B Commitment of a Lender pursuant to Clause 2.2 (Accordion feature — Increase of Facility B), shall at no time exceed €775,000,000.

“Total Facility A Commitments” means the aggregate of the Facility A Commitments, being €183,000,000 at the date of this Agreement.

“Total Facility B Commitments” means the aggregate of the Facility B Commitments, being €337,000,000 at 4 May 2010 and, following any increase in the Facility B Commitment of a Lender pursuant to Clause 2.2 (Accordion feature — Increase of Facility B), shall at no time exceed €512,000,000.

“Total Facility C Commitments” means the aggregate of the Facility C Commitments, being USD 105,600,000 as at the date of this Agreement.

“Transfer Certificate” means a certificate substantially in the form set out in Schedule 5 (Form of Transfer Certificate) or any other form agreed between the Agent and the Company.

“Transfer Date” means, in relation to an assignment or a transfer, the later of:

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

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

“Unpaid Sum” means any sum due and payable but unpaid by an Obligor under the Finance Documents.

“Utilisation” means a Loan (but not a utilisation of an Ancillary Facility).

“Utilisation Date” means the date of a Utilisation, being the date on which the relevant Loan is to be made.

“Utilisation Request” means a notice substantially in the form set out in Part I of Schedule 3 (Requests).

“VAT” means value added tax as provided for in the Value Added Tax Xxx 0000 and any other tax of a similar nature.

1.2 Construction

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

(i) the “Agent”, any “Ancillary Lender”, the “Arranger”, the “Bookrunner”, any “Finance Party”, any “Hedging Bank”, any “Lender”, any “Long Term Hedging Bank”, any “Obligor”, any “Party”, any “Secured Party” or the “Security Agent” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;

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

(iii) a Borrower providing “cash cover” for a letter of credit, bank guarantee or other contingent liability under an Ancillary Facility means a Borrower paying an amount in the currency of the letter of credit, bank guarantee or, as the case may be, contingent liability under the Ancillary Facility to an interest-bearing account in the name of the Borrower and the following conditions are met:

(A) the account is with the Security Agent or relevant Ancillary Lender for which that cash cover is to be provided;

(B) withdrawals from the account may only be made to pay a Finance Party amounts due and payable to it under this Agreement in respect of that letter of credit, bank guarantee or other contingent liability under that Ancillary Facility until no amount is or may be outstanding under that letter of credit, bank guarantee or contingent liability under that Ancillary Facility; and

(C) if the Security Agent or Ancillary Lender requires, the Borrower has executed a security document over that account, in form and substance satisfactory to the Security Agent or the Ancillary Lender with which that account is held, creating a first ranking security interest over that account;

(iv) a “Finance Document”, “Hedging Document”, “Long Term Hedging Document” or any other agreement or instrument is a reference to that Finance Document, Hedging Document, Long Term Hedging Document or other agreement or instrument as amended or novated;

(v) “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;

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

(vii) a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

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

(ix) a time of day is a reference to London time;

(x) a Borrower “repaying” or “prepaying” Ancillary Outstandings means:

(A) that Borrower providing cash cover for the Ancillary Outstandings;

(B) the maximum amount payable under the Ancillary Facility being reduced in accordance with its terms; or

and the amount by which Ancillary Outstandings are, repaid or prepaid under sub-paragraphs (xi)(A) and (xi)(B) above is the amount of the relevant cash cover or reduction;

(xi) the “equivalent” in any currency (the “first currency”) of any amount in another currency (the “second currency”) shall be construed as a reference to the amount in the first currency which could be purchased with that amount in the second currency at the Agent’s spot rate of exchange for the purchase of the first currency with the second currency in the London foreign exchange market at or about 11:00 a.m. on a particular day (or at or about such time and on such date as the Agent may from time to time reasonably determine to be appropriate in the circumstances); and

(xii) “guarantee” means any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness.

(b) Section, Clause and Schedule headings are for ease of reference only.

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

(d) A Default or an Event of Default is “continuing” if it has not been remedied or waived.

(e) In this Agreement, where it relates to a Dutch entity, a reference to:

(i) a winding-up, administration or dissolution includes a Dutch entity being declared bankrupt (failliet verklaard) or dissolved (ontbonden);

(ii) a moratorium includes surséance van betaling and granted a moratorium includes surséance verleend;

(iii) insolvency includes a bankruptcy and moratorium;

(iv) a trustee in bankruptcy includes a curator;

(v) an administrator includes a bewindvoerder;

(vi) “security right” includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), right of retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any right in rem (beperkt recht), created for the purpose of granting security (goederenrechtelijke zekerheid);

(vii) an attachment includes a beslag; and

(viii) a subsidiary includes a dochtermaatschappij as defined in Article 2:24a of the Dutch Civil Code.

(f) In this Agreement, where it relates to an Irish entity, a reference to “examiner” and “examinership” shall have the meanings ascribed to such terms in the Irish Amendment Xxx 0000.

1.3 Third Party Rights

(a) A person who is not a Party has no right under the Contracts (Rights of Third Parties) Xxx 0000 to enforce or to enjoy the benefit of any term of this Agreement.

(b) Notwithstanding any term of any Finance Document the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

1.4 Currency Symbols and Definitions

(a) “€” and “euro” mean the single currency unit of the Participating Member States;

(b) “NOK” means the lawful currency for the time being of the Kingdom of Norway;

(d) “Sterling” means the lawful currency for the time being of the United Kingdom of Great Britain and Northern Ireland; and

(e) “CAD” means the lawful currency for the time being of Canada.

(f) “CLP” means the lawful currency for the time being of Chile.

SECTION 2

THE FACILITIES

2. THE FACILITIES

2.1 The Facilities

Subject to the terms of this Agreement:

(a) the Facility A Lenders make available to the Facility A Borrower a euro term loan facility in an aggregate amount equal to the Total Facility A Commitments;

(b) the Facility B Lenders make available to the Facility B Borrowers a multicurrency revolving loan facility in an aggregate amount equal to the Total Facility B Commitments (part of which may, from time to time and in an aggregate amount at any time up to the Total Facility B Ancillary Limit, be designated an Ancillary Facility); and

(c) the Facility C Lenders make available to the Facility C Borrowers a multicurrency revolving loan facility in an aggregate amount equal to the Total Facility C Commitments (part of which may, from time to time and in an aggregate amount at any time up to the Total Facility C Ancillary Limit, be designated an Ancillary Facility).

2.2 Accordion feature — Increase of Facility B

(a) In this Clause 2.2:

“Accordion Amount” means the aggregate amount of any increase in the Facility B Commitments pursuant to Clause 2.2 (Accordion feature — Increase of Facility B); and

“Lender Accordion Amount” means, in relation to a Lender, an amount which bears the same proportion to the Accordion Amount as that Lender’s Commitment bears to the Total Commitments.

“Lender Increase Amount” means the amount by which each Lender agrees to increase its Facility B Commitments as requested by the Company pursuant to paragraph (f) of Clause 2.2 (Accordion feature — Increase of Facility B).

(b) So long as no Default has occurred and is continuing and subject to the provisions of this Clause 2.2, the Company may:

(i) on one occasion;

(ii) at any time prior to the fourth anniversary of this Agreement; and

(iii) on not less than 42 days’ written notice to the Agent,

request in writing to the Agent (a “Request”) an increase in the Facility B Commitment by an additional amount not exceeding €175,000,000, such additional amount being subject to the consent of the Majority Lenders.

(i) the amount of the increase of Facility B Commitments being requested (the “Requested Increase Amount”);

(ii) the date on which such Accordion Amount is requested to become effective which must be a date within the Availability Period for Facility B falling at least 42 days after the date of the Request; and

(iii) details of the purpose for which the Accordion Amount will be used, provided always that the purpose of any Loan must be to finance a Permitted Acquisition.

(d) The Agent shall promptly provide a copy of the Request to each Lender upon receipt thereof.

(e) The Lenders shall, on receipt of a Request, consult with the Company on the terms on which Facility B will be increased pursuant to this Clause 2.2.

(f) Each Lender shall have the right, for a period of 21 days following receipt of the Request by the Agent, to confirm by written notice to the Company and the Agent whether it consents to the Request, and whether it intends, having obtained all credit or other relevant internal approvals, to increase its Facility B Commitment in accordance with Clause 25.10 (Accordion Increase), by a principal amount equal to its Lender Accordion Amount.

(g) No Lender (or any successor thereto) shall have any obligations to increase its Facility B Commitment or incur any other obligations under this Agreement or any other Finance Document in relation to the Request.

(h) If any Lender does not elect to increase its Facility B Commitment pursuant to the Request, the Company may simultaneously request:

(i) that each Lender participating in the Accordion Amount further increases its Facility B Commitment in addition to its Lender Accordion Amount (the amount by which each Lender agrees to increase its Lender Accordion Amount being the “Further Lender Accordion Amount”), and if an existing Lender agrees to further increase its Facility B Commitment it shall do so in accordance with Clause 25.10 (Accordion Increase); and

(ii) that another bank or financial institution participates in the Accordion Amount (an “Acceding Lender Accordion Amount”) provided that, where one or more of the existing Lenders is increasing its Facility B Commitment under this Clause 2.2, this shall be on the same terms as agreed to increase Facility B pursuant to paragraph (e) above, in which case such bank or financial institution shall become an Acceding Lender in accordance with Clause 25.11 (Acceding Lender),

in each case subject to paragraphs (i), (j) and (k) below.

(i) Where the sum of the Further Lender Accordion Amounts and the Lender Increase Amounts are sufficient to meet or exceed the Requested Increase Amount, the Further Lender Accordion Amounts shall be added to the Lender Increase Amounts until the Requested Increase Amount is reached (and if there is more than one Lender that wishes to participate in a Further Lender Accordion Amount, such Lenders shall, unless otherwise agreed, participate pro rata in the unsubscribed amount of the Requested Increase Amount).

(j) Where the sum of the Further Lender Accordion Amounts is, when added to the Lender Increase Amounts, not sufficient to meet the Requested Increase Amount, the Acceding Lender Accordion

Amounts shall, at the Company’s discretion, be added to the Lender Increase Amounts and the Further Lender Accordion Amounts until the Requested Increase Amount is reached.

(k) An increase in the aggregate amount of the Facility B Commitments pursuant to this Clause (which may not exceed the Requested Increase Amount) shall become effective upon execution by the Agent of:

(i) an Accordion Increase Certificate signed by the Company and by the relevant Lender whose Facility B Commitment is to be increased; and/or

(ii) an Accordion Lender Accession Agreement signed by the Acceding Lender,

following which the Facility B Commitments shall automatically be increased by the Accordion Amount, being the aggregate of the amounts specified in each Accordion Increase Certificate and Accordion Lender Accession Agreement, and Schedule 1 (The Original Parties) shall automatically be deemed to be amended to reflect the Total Commitments of all Lenders after giving effect to the addition of such Accordion Amount.

2.3 Increase

(a) The Company may by giving prior notice to the Agent by no later than the date falling five Business Days after the effective date of a cancellation of:

(i) the Available Commitments of a Defaulting Lender in accordance with Clause 9.14 (Right of cancellation in relation to a Defaulting Lender); or

(ii) the Commitments of a Lender in accordance with Clause 9.1 (Illegality),

request that the Total Commitments be increased (and the Total Commitments under that Facility shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Commitments or Commitments so cancelled as follows:

(iii) the increased Commitments will be assumed by one or more Lenders or other banks, financial institutions, trusts, funds or other entities (each an “Increase Lender”) selected by the Company (each of which shall not be a member of the Group and which is further acceptable to the Agent (acting reasonably)) and each of which confirms its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender;

(iv) each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;

(v) each Increase Lender shall become a Party as a “Lender” and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;

(vi) the Commitments of the other Lenders shall continue in full force and effect; and

(vii) any increase in the Total Commitments shall take effect on the date specified by the Company in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied.

(b) An increase in the Total Commitments will only be effective on:

(i) the execution by the Agent of an Increase Confirmation from the relevant Increase Lender;

(ii) in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase the performance by the Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Agent shall promptly notify to the Company and the Increase Lender.

(c) Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.

(d) Unless the Agent otherwise agrees or the increased Commitment is assumed by an existing Lender, the Company shall, on the date upon which the increase takes effect, promptly on demand pay the Agent and the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by either of them and, in the case of the Security Agent, by any Receiver or Delegate in connection with any increase in Commitments under this Clause 2.3.

(e) The Company shall pay to the Increase Lender a fee in the amount and at the times as may be agreed between the Company and the Increase Lender in a Fee Letter.

(f) Clause 25.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.3 in relation to an Increase Lender as if references in that Clause to:

(i) an “Existing Lender” were references to all the Lenders immediately prior to the relevant increase;

(ii) the “New Lender” were references to that “Increase Lender”; and

(iii) a “re-transfer” and “re-assignment” were references to respectively a “transfer” and “assignment”.

2.4 Finance Parties’ rights and obligations

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

(b) The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.

(c) A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.

2.5 Obligors’ agent

(a) Each Obligor (other than the Company) irrevocably appoints the Company to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

(i) the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give and receive all notices, consents and instructions (including Utilisation Requests), to agree, accept and execute on its behalf all documents in connection with the Finance Documents (including amendments and variations of and consents under any Finance Document) and to execute any new Finance Document and to take such other action as may be necessary or desirable under or in connection with the Finance Documents; and

(ii) each Secured Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Company.

(b) Each Obligor (other than the Company) confirms that:

(i) it will be bound by any action taken by the Company under or in connection with the Finance Documents; and

(ii) each Secured Party may rely on any action purported to be taken by the Company on behalf of that Obligor.

2.6 Acts of the Company

(a) The respective liabilities of each of the Obligors under the Finance Documents shall not be in any way affected by:

(i) any actual or purported irregularity in any act done, or failure to act, by the Company;

(ii) the Company acting (or purporting to act) in any respect outside any authority conferred upon it by any Obligor; or

(iii) any actual or purported failure by, or inability of, the Company to inform any Obligor of receipt by it of any notification under the Finance Documents.

(b) In the event of any conflict between any notices or other communications of the Company and any other Obligor, those of the Company shall prevail.

3. PURPOSE

3.1 Purpose

(a) The Facility A Borrower shall apply all amounts borrowed by it under Facility A towards refinancing the original part-financing of the Acquisition, being the term facilities under the 2006 Facility Agreement.

(b) Each Facility B Borrower shall apply all amounts borrowed by it under Facility B, other than amounts available to the Company pursuant to Clause 2.2 (Accordion feature — Increase of Facility B) to finance the general corporate purposes of the Group and to refinance existing

interest-bearing debt of the Group and in the case of Chilean Facility B Borrowers, to finance direct exports of such Facility B Borrowers. The Company shall apply all amounts made available under Facility B pursuant to Clause 2.2 (Accordion feature — Increase of Facility B) for the general corporate purposes of the Group and, for the avoidance of doubt, not for any Permitted Acquisition).

(c) Each Facility C Borrower shall apply all amounts borrowed by it under Facility C to finance the general corporate purposes of the Group and to refinance existing interest-bearing debt of the Group and in the case of Chilean Facility C Borrowers, to finance direct exports of such Facility C Borrowers.

(d) No amount borrowed under Facility B or Facility C shall be applied for any purpose for which amounts borrowed under Facility A may be applied.

3.2 Monitoring

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

4. CONDITIONS OF UTILISATION

4.1 Initial conditions precedent

The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) in relation to any Utilisation if, on or before the Utilisation Date for that Utilisation, the Agent has received all of the documents and other evidence listed in Part I (Conditions precedent to signing) and Part II (Conditions precedent to first Utilisation) of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Agent, acting reasonably. The Agent shall notify the Company and the Lenders promptly upon being so satisfied.

4.2 Further conditions precedent

The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ participation) if on the date of the Utilisation Request and on the proposed Utilisation Date:

(i) in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and

(ii) the Repeating Representations are true.

4.3 Conditions relating to Optional Currencies

(a) A currency will constitute an Optional Currency in relation to a Facility B Loan if it is USD, NOK, CAD or Sterling only or in relation to a Facility C Loan if it is euro, NOK, CAD or Sterling only, or if:

(i) it is readily available in the amount required and freely convertible into the Base Currency in the Relevant Interbank Market on the Quotation Day and the Utilisation Date for that Loan; and

(ii) it has been approved by the Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Agent of the relevant Utilisation Request or Selection Notice for that Loan.

(b) If by the Specified Time the Agent has received a written request from the Company for a currency to be approved under paragraph (a)(ii) above, the Agent will notify the Lenders of that request by the Specified Time. Based on any responses received by the Agent by the Specified Time, the Agent will confirm to the Company by the Specified Time:

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

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

4.4 Maximum number of Loans

(a) A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation:

(i) more than five Facility A Loans would be outstanding;

(ii) more than 10 Facility B Loans with an Interest Period of one month would be outstanding or, in any case, more than 20 Facility B Loans would be outstanding; or

(iii) more than two Facility C Loans with an Interest Period of one month would be outstanding or, in any case, more than five Facility C Loans would be outstanding.

(b) A Borrower may not request that a Facility A Loan, be divided if, as a result of the proposed division, more than five Facility A Loans would be outstanding.

(c) Any Loan made by a single Lender under Clause 6.2 (Unavailability of a currency) shall not be taken into account in this Clause 4.4.

(d) Any Separate Loan shall not be taken into account in this Clause 4.4.

SECTION 3

UTILISATION

5. UTILISATION

5.1 Delivery of a Utilisation Request

A Borrower may utilise a Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

5.2 Completion of a Utilisation Request

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

(i) it identifies the Facility to be utilised;

(ii) it identifies the relevant Borrower;

(iii) the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;

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

(v) the proposed Interest Period complies with Clause 11 (Interest Periods); and

(vi) it specifies the account and bank (which must be in the principal financial centre of the country of the currency of the Utilisation or, in the case of euro, the principal financial centre of a Participating Member State in which banks are open for general business on that day or London or any other principal financial centre agreed between the Company and the Agent, acting reasonably) to which the proceeds of the Utilisation are to be credited.

(b) Only one Loan may be requested in each Utilisation Request.

5.3 Currency and amount

(a) The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency.

(b) The amount of the proposed Loan must be:

(i) for Facility A, a minimum of €50,000,000 and integral multiples of €5,000,000 or, if less, the Available Facility;

(ii) for Facility B, subject to paragraph (c) below, if the currency selected is the Base Currency, a minimum of €5,000,000 and integral multiples of €500,000 or the equivalent in any Optional Currency, as selected, or if less, the Available Facility;

(iii) for Facility C, subject to paragraph (c) below, if the currency selected is the Base Currency, a minimum of USD 5,000,000 and integral multiples of USD 500,000 or the equivalent in any Optional Currency, as selected, or if less, the Available Facility;

(iv) if the currency selected is an Optional Currency pursuant to paragraph 4.3(a)(i) and paragraph 4.3(a)(ii) of Clause 4.3 (Conditions relating to Optional Currencies), the minimum amount (and, if required, integral multiple) specified by the Agent pursuant to paragraph 4.3(b)(ii) of Clause 4.3 (Conditions relating to Optional Currencies) or, if less, the Available Facility; and

(v) in any event such that its Base Currency Amount is less than or equal to the Available Facility.

(c) In the case of Facility B and Facility C, taking into account the proposed Facility B Loan or proposed Facility C Loan, the aggregate amounts in the Base Currency of Facility B Loans or Facility C Loans with an Interest Period of one month that are outstanding shall not exceed 50 per cent. of the Total Facility B Commitments or 50 per cent. of the Total Facility C Commitments respectively.

5.4 Lenders’ participation

(a) If the conditions set out in this Agreement have been met, and subject to Clause 8.2 (Repayment of Facility B Loans and Facility C Loans), each Lender participating in a Facility shall make its participation in each Loan under that Facility available by the Utilisation Date through its Facility Office under that Facility.

(b) 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.

(c) The Agent shall notify each Lender participating in a Facility of the amount, currency and the Base Currency Amount of each Loan and the amount of its participation under that Facility and, if different, the amount of that participation to be made available in cash, in each case by the Specified Time.

5.5 Cancellation of Commitment

(a) The Facility A Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility A.

(b) The Facility B Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility B.

(c) The Facility C Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility C.

6. OPTIONAL CURRENCIES

6.1 Selection of currency

A Borrower (or the Company on behalf of a Borrower) shall select the currency of a Facility B Loan or Facility C Loan in a Utilisation Request.

6.2 Unavailability of a currency

If before the Specified Time on any Quotation Day:

(a) a Lender notifies the Agent that the Optional Currency requested is not readily available to it in the amount required; or

(b) a Lender notifies the Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it,

the Agent will give notice to the relevant Borrower to that effect by the Specified Time on that day. In this event, any Lender that gives notice pursuant to this Clause 6.2 will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender’s proportion of the Base Currency Amount or, in respect of a Rollover Loan, an amount equal to that Lender’s proportion of the Base Currency Amount of the Rollover Loan that is due to be made) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period.

6.3 Agent’s calculations

Each Lender’s participation in a Loan will be determined in accordance with paragraph (b) of Clause 5.4 (Lenders’ participation).

7. ANCILLARY FACILITIES

7.1 Establishment of Ancillary Facilities

One or more Ancillary Facilities may from time to time be established in favour of one or more Facility B Borrowers and Facility C Borrowers, in each case, which are also a Guarantor, in accordance with this Clause 7 by designating all or part of the Facility B Commitment or Facility C Commitment of a Lender as an Ancillary Commitment.

7.2 Types of Ancillary Facility

Each Ancillary Facility may comprise any of the following (or any combination of the following):

(a) overdraft, cheque clearing, automatic payment or other current account facilities;

(b) guarantee, bonding or documentary or standby letter of credit facilities;

(c) derivatives facilities for protection against or benefit from fluctuation in any rate or price in the ordinary course of trade (and not for speculative purposes);

(d) international or domestic cash pooling facilities;

(e) ordinary, bilateral local loan facilities; and

(f) such other facilities as may be required and as the Agent and the relevant Ancillary Lender may agree.

7.3 Request for Ancillary Facilities

(a) The Company may, at any time, request the establishment of an Ancillary Facility by delivery to the Agent of a duly completed Ancillary Facility Request.

(b) An Ancillary Facility Request relating to a proposed Ancillary Facility will not be regarded as duly completed unless it identifies:

(i) the Facility under which it is to be designated an Ancillary Facility (which must be Facility B or Facility C);

(ii) the Facility B Borrower(s) or the Facility C Borrower(s) under that Ancillary Facility as the case may be;

(iii) the Ancillary Lender (which must be a Facility B Lender or a Facility C Lender) which is to make available that Ancillary Facility under Facility B or Facility C respectively;

(iv) the type or types of facility to comprise that Ancillary Facility (which must comply with Clause 7.2 (Types of Ancillary Facility));

(v) the date (the “Commencement Date”) on which that Ancillary Facility is to become available (which must be a date on which the Facility B or, as the case may be, Facility C is available to be drawn and must not be less than 10 Business Days after the date on which the Agent receives the Ancillary Facility Request);

(vi) the expiry date of that Ancillary Facility (which must fall on or before the Termination Date);

(vii) the amount of the Ancillary Commitment (which must be denominated in the Base Currency) which is to apply to that Ancillary Facility;

(viii) the currency or currencies (which must comply with paragraph (c) below) in which utilisations under that Ancillary Facility may be requested;

(ix) the margin, commitment fee and other fees payable in respect of that Ancillary Facility which in respect of Margin shall not exceed the Margin payable under Facility B or Facility C as the case may be; and

(x) such other details in relation to that Ancillary Facility as the Agent may reasonably require.

(i) is readily available in the amount required and freely convertible into the Base Currency in the Relevant Interbank Market on the date for utilisation of that Ancillary Facility; and

(ii) has been approved by the Agent (acting on the instructions of the Facility B Lenders or Facility C Lenders as the case may be) on or prior to receipt by the Agent of the Ancillary Facility Request for that Ancillary Facility.

(d) The Agent shall, promptly after receipt by it of an Ancillary Facility Request, notify each Facility B Lender or Facility C Lender, as the case may, be of that Ancillary Facility Request.

7.4 Grant of Ancillary Facility

The relevant Facility B Lender or Facility C Lender identified in a duly completed Ancillary Facility Request shall become an Ancillary Lender authorised to make the proposed Ancillary Facility available with effect from the proposed Commencement Date, if the following conditions are fulfilled:

(a) the proposed Ancillary Commitment under that Ancillary Facility is equal to or less than the Available Commitment of that Lender under the relevant Facility on that Commencement Date;

(b) the proposed Ancillary Commitment under that Ancillary Facility will not, when aggregated with the Ancillary Commitments under all other Ancillary Facilities designated under Facility B or Facility C, as the case may be in effect on that Commencement Date, exceed the Total Facility B Ancillary Limit or the Total Facility C Ancillary Limit; and

(c) the proposed Ancillary Lender has notified the Agent by that Commencement Date that it agrees to make available that Ancillary Facility.

7.5 Adjustments to Facility B Commitment or Facility C Commitment

(a) The Facility B Commitment or Facility C Commitment as the case may be of a Lender which is an Ancillary Lender shall (except for the purposes of determining the Majority Lenders and of Clause 9.12 (Right of replacement or repayment and cancellation in relation to a single Lender) be reduced by the amount of its Ancillary Commitments under Facility B and/or Facility C respectively.

(b) If and to the extent that:

(i) any Ancillary Facility expires, or is cancelled (in whole or in part) in accordance with Clause 7.8 (Voluntary cancellation of Ancillary Facilities); and

(ii) no amount is or may be payable to or by the Ancillary Lender in respect of that Ancillary Facility (or the relevant part of it),

the Facility B Commitment or Facility C Commitment of the relevant Lender will immediately be increased by an amount equal to the amount of the Ancillary Commitment of that Ancillary Facility (or, if less, that part of it which has expired or been cancelled).

7.6 Terms of Ancillary Facilities

(a) The terms applicable to each Ancillary Facility shall be as agreed between the relevant Ancillary Lender and the relevant Borrower (as set out in the applicable Ancillary Facility Document), provided that:

(i) those terms shall be consistent with this Clause 2.2 and the details set out in the Ancillary Facility Request;

(ii) utilisations under an Ancillary Facility shall be used only for the general corporate purposes of the Group or, in respect of Chilean Borrowers, to finance direct exports of members of the Group incorporated in Chile;

(iii) the rate of interest, fees and other remuneration in respect of the Ancillary Facility shall be based upon the normal market rates and terms from time to time of that Ancillary Lender provided that the Margin shall not exceed the Margin payable under Facility B or Facility C as the case may be; and

(iv) cancellation, termination or enforcement of the Ancillary Facility shall only occur as described in Clause 7.8 (Voluntary cancellation of Ancillary Facilities), Clause 9 (Prepayment and cancellation) or Clause 24.14 (Acceleration).

(b) Any material variation to any Ancillary Facility (including any proposed increase or reduction in the Ancillary Commitment) shall be in accordance with and subject to this Clause 7.

(c) In the case of any inconsistency between any term of an Ancillary Facility and any term of this Agreement, this Agreement shall prevail except for (i) Clause 33.3 (Day count convention) which shall not prevail for the purposes of calculating fees, interest or commission relating to an Ancillary Facility; (ii) an Ancillary Facility comprising more than one account where the terms of the Ancillary Documents shall prevail to the extent required to permit the netting of balances on those accounts (if applicable); and (iii) where the relevant term of this Agreement would be contrary to, or inconsistent with, the law governing the relevant Ancillary Document, in which case that term of this Agreement shall not prevail.

7.7 Limits on Ancillary Facilities

The Company shall ensure that:

(a) the aggregate of all Ancillary Commitments in respect of Ancillary Facilities under Facility B does not at any time exceed the Total Facility B Ancillary Limit;

(b) the aggregate of all Ancillary Commitments in respect of Ancillary Facilities under Facility C does not at any time exceed the Total Facility C Ancillary Limit; and

(c) the Ancillary Outstandings under any Ancillary Facility do not at any time exceed the Ancillary Commitment under that Ancillary Facility.

7.8 Voluntary cancellation of Ancillary Facilities

The Company may, if it gives the Agent and the relevant Ancillary Lender not less than 10 Business Days’ prior notice, cancel the whole or any part of the Ancillary Commitment under an Ancillary Facility.

7.9 Notice in respect of Ancillary Facilities

(a) Each Ancillary Lender shall promptly notify the Agent of:

(i) the establishment by it of any Ancillary Facility and the applicable Commencement Date;

(ii) the amount of any Ancillary Facility which is cancelled or expires and the date of any such cancellation or expiry; and

(iii) any other information relating to any Ancillary Facility provided by it as the Agent may request, including the Ancillary Outstandings from time to time.

(b) The Agent may assume, unless it has received notice to the contrary in its capacity as agent for the Lenders, that no Ancillary Facility has expired or been cancelled in whole or part.

7.10 Ancillary Outstandings

The relevant Borrower under an Ancillary Facility shall repay or pay on the due date each amount payable under that Ancillary Facility.

7.11 Affiliates of Lenders as Ancillary Lenders

(a) Subject to the terms of this Agreement, an Affiliate of a Lender may become an Ancillary Lender. In such case, the Lender and its Affiliate shall be treated as a single Lender whose Facility B Commitment and/or Facility C Commitment is the amount set out opposite the relevant Lender’s

name in Part II of Schedule 1 (The Original Parties) and/or the amount of any Facility B Commitment and/or Facility C Commitment transferred to or assumed by that Lender under this Agreement, to the extent (in each case) not cancelled, reduced or transferred by it under this Agreement. For the purposes of calculating the Lender’s Available Commitment with respect to Facility B and/or Facility C, the Lender’s Commitment shall be reduced to the extent of the aggregate of the Ancillary Commitments of its Affiliates under the relevant Facility.

(b) The Company shall specify any relevant Affiliate of a Lender in any notice delivered by the Company to the Agent pursuant to paragraph (b) of Clause 7.3 (Request for Ancillary Facilities).

(c) If a Lender assigns all of its rights and benefits or transfers all of its rights and obligations to a New Lender (as defined in Clause 25 (Changes to the Finance Parties), its Affiliate shall cease to have any obligations under this Agreement or any Ancillary Document.

(d) Where this Agreement or any other Finance Document imposes an obligation on an Ancillary Lender and the relevant Ancillary Lender is an Affiliate of a Lender which is not a party to that document, the relevant Lender shall ensure that the obligation is performed by its Affiliate.

SECTION 4

REPAYMENT, PREPAYMENT AND CANCELLATION

8. REPAYMENT

8.1 Repayment of Facility A Loans

(a) The Facility A Loans outstanding at the end of the Availability Period for Facility A shall be repaid on the following dates in the following amounts:

Facility A Repayment Date (months after the Original Signing Date)		Facility A Repayment Instalment (EUR)
6		16,000,000
12		16,000,000
18		16,000,000
24		0
30		0
36		16,000,000
42		16,000,000
48		16,000,000
54		16,000,000
Termination Date for Facility A		71,000,000

(b) No Borrower may reborrow any part of Facility A which is repaid.

8.2 Repayment of Facility B Loans and Facility C Loans

(a) Subject to paragraph (c) below, each Borrower which has drawn a Facility B Loan or a Facility C Loan shall repay that Loan on the last day of that Loan’s Interest Period.

(b) Without prejudice to each Borrower’s obligation under paragraph (a) above, if one or more Facility B Loans or Facility C Loans are to be made available to a Borrower:

(i) on the same day that a maturing Facility B Loan or Facility C Loan is due to be repaid by that Borrower;

(ii) in the same currency as the maturing Facility B Loan or Facility C Loan; and

(iii) in whole or in part for the purpose of refinancing the maturing Facility B Loan or Facility C Loan;

the aggregate amount of the new Facility B Loans or Facility C Loans shall be treated as if applied in or towards repayment of the maturing Facility B Loan or Facility C Loan so that:

(A) if the amount of the maturing Facility B Loan or Facility C Loan exceeds the aggregate amount of the new Facility B Loans or Facility C Loans:

(1) the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and

(2) each Lender’s participation (if any) in the new Facility B Loans or Facility C Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation (if any) in the maturing Facility B Loan or Facility C Loan and that Lender will not be required to make its participation in the new Facility B Loans or Facility C Loans available in cash; and

(B) if the amount of the maturing Facility B Loan or Facility C Loan is equal to or less than the aggregate amount of the new Facility B Loans or Facility C Loans:

(1) the relevant Borrower will not be required to make any payment in cash; and

(2) each Lender will be required to make its participation in the new Facility B Loans or Facility C Loans available in cash only to the extent that its participation (if any) in the new Facility B Loans or Facility C Loans exceeds that Lender’s participation (if any) in the maturing Facility B Loan or Facility C Loan and the remainder of that Lender’s participation in the new Facility B Loans or Facility C Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Facility B Loan or Facility C Loan.

(c) At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Facility B Loans or Facility C Loans then outstanding will be automatically extended to the Termination Date in relation to Facility B or Facility C and will be treated as separate Facility B Loans or Facility C Loans (the “Separate Loans”) denominated in the currency in which the relevant participations are outstanding.

(d) A Borrower to whom a Facility B Loan or Facility C Loan is outstanding may prepay that Loan by giving five Business Days’ prior notice to the Agent. The Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as practicable on receipt.

(e) Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Borrower by the time and date specified by the Agent (acting reasonably) and will be payable by that Borrower to the Defaulting Lender on the last day of each Interest Period of that Loan.

(f) The terms of this Agreement relating to Facility B Loans and/or Facility C Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (c) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan.

(g) On the Termination Date, each Borrower under Facility B or Facility C shall repay all amounts (if any) owing or outstanding under that Facility B or Facility C together with accrued interest.

8.3 Repayment of Ancillary Facilities

On the Termination Date, each Borrower under an Ancillary Facility shall repay all amounts (if any) owing or outstanding under that Ancillary Facility.

9. PREPAYMENT AND CANCELLATION

9.1 Illegality

If it becomes unlawful in any applicable jurisdiction for a Lender or an Ancillary Lender to perform any of its obligations as contemplated by this Agreement or, in the case of an Ancillary Lender, any Ancillary Facility Document or to fund or maintain its participation in any Utilisation or, in the case of an Ancillary Lender, any utilisation under any Ancillary Facility:

(a) that Lender or, as the case may be, that Ancillary Lender shall promptly notify the Agent upon becoming aware of that event;

(b) upon the Agent notifying the Company:

(i) the Commitment of that Lender or, as the case may be, the commitment of that Ancillary Lender under that Ancillary Facility will be immediately cancelled; and/or

(ii) that Ancillary Lender shall not be obliged to issue any guarantee, bond or letter of credit under that Ancillary Facility;

(c) the Company shall ensure that the relevant Borrower shall use its best endeavours to procure the release of each outstanding letter of credit and bank guarantee;

(d) each Borrower shall:

(i) repay that Lender’s participation in the Utilisations made to that Borrower on the last day of the Interest Period for each Utilisation occurring after the Agent has notified the Company 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/or

(ii) repay each amount payable or, as the case may be, provide full cash cover in respect of each contingent liability under each Ancillary Facility of that Ancillary Lender on the next due date occurring after the Agent has notified the Company or, if earlier, the date specified by the Ancillary Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law).

9.2 Change of control

(a) If:

(i) the Company ceases to be a publicly listed company with the Oslo Stock Exchange (or any such other reputable exchange); or

(ii) if any person or group of persons acting in concert (other than Xxxx Xxxxxxxxxx and/or any entity controlled by Xxxx Xxxxxxxxxx) gains control of the Company,

then:

(iii) the Company shall promptly notify the Agent upon becoming aware of that event;

(iv) a Lender shall not be obliged to fund a Utilisation or a utilisation of an Ancillary Facility (except for a Rollover Loan); and

(v) the Agent shall, by not less than 90 days’ notice to the Company, (except, in the case of paragraphs (i) and (ii) above, if the Majority Lenders have consented to the new shareholder(s) gaining control of the Company, such consent not to be unreasonably withheld), cancel the Total Commitments and declare all outstanding Loans and Ancillary Outstandings, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Total Commitments will be cancelled and all such outstanding amounts will become immediately due and payable.

(b) For the purpose of paragraph (a) above, “control” means having (i) 50 per cent. or more of the voting rights on the shares issued in the capital of the Company, or (ii) having the right to appoint or remove a majority of the Company’s board of directors or (iii) pursuant to an agreement or otherwise, controlling 50 per cent. or more of the voting rights in the Company.

(c) For the purpose of paragraph (a) above, “acting in concert” means a group of persons who pursuant to an agreement or understanding (whether formal or informal) actively co-operate through the acquisition by any of them, either directly or indirectly, of shares in the Company with a view to obtaining or consolidating control of the Company.

9.3 Mandatory prepayment from Net Sale Proceeds

(a) In this Clause 9.3:

“Net Sale Proceeds” means the cash or cash equivalent proceeds (including, when received, the cash or cash equivalent proceeds of any deferred consideration, whether by way of adjustment to the purchase price or otherwise) received by a member of the Group in connection with the sale, transfer or other disposal by any member of the Group of an asset (other than in the ordinary course of trading) after deducting:

(i) reasonable fees and reasonable transaction costs properly incurred in connection with that sale, transfer or disposal; and

(ii) Taxes paid or reasonably estimated by the Company to be payable (as certified by the Company to the Agent) as a result of that sale, transfer or disposal.

(b) The Company shall ensure that any Net Sale Proceeds are paid into the Prepayment Account for application in accordance with Clause 9.7 (Application of Net Sale Proceeds and Insurance Proceeds).

(i) up to an aggregate amount of [***] in any financial year; or

(ii) arising from the sale of fixed assets where such Net Sale Proceeds have within 12 months of the disposal of the fixed assets been applied towards the purchase of other fixed assets for use in the Group’s business.

9.4 Mandatory prepayment from Insurance Proceeds

In this Clause 9.4:

“Insurance Proceeds” means:

(i) proceeds exceeding [***] or its equivalent in another currency or currencies in respect of any individual claim or related claims received by any member of the Group under or pursuant to any insurance policy or captive insurance arrangement against loss or destruction (or equivalent) after the date of this Agreement; but

(ii) excluding any proceeds in respect of any individual claim or related claims received by any member of the Group under or pursuant to any insurance policy or captive insurance arrangement against loss resulting from business interruption after the date of this Agreement.

(b) The Company shall ensure that all Insurance Proceeds are paid into the Prepayment Account for application in accordance with Clause 9.7 (Application of Net Sale Proceeds and Insurance Proceeds).

(c) Paragraph (b) above does not apply to any Insurance Proceeds to the extent that such Insurance Proceeds have within six months of receipt been applied to replace, repair or reinstate the asset(s) to which those Insurance Proceeds relate.

9.5 Capital Market Issue Proceeds

(a) In this Clause 9.5 “Capital Market Issue Proceeds” means [***] of any cash or cash equivalent proceeds received by a member of the Group from the issuance of a convertible or regular bond, as permitted by paragraph (b)(vi) of Clause 23.4 (Financial Indebtedness) after deducting (if applicable):

(i) reasonable transaction costs incurred in connection with the issuance of the convertible or regular bond ;

(ii) reasonable transaction costs incurred in connection with the Permitted Acquisition;

(iii) proceeds used to fund the purchase price of a Permitted Acquisition;

(iv) in relation to such Permitted Acquisition proceeds applied in reducing the indebtedness of the target as contractually required by the relevant acquisition documents or this Agreement; and

(v) proceeds applied for the purpose of funding the working capital requirements in relation to such Permitted Acquisition.

(b) The Company shall ensure that any Capital Market Issue Proceeds are paid into the Prepayment Account for application in accordance with Clause 9.8 (Application of Capital Market Issue Proceeds).

9.6 Prepayment Account

(a) In this Clause 9.6:

“Proceeds” means Net Sale Proceeds, Insurance Proceeds and/or Capital Market Issue Proceeds.

(b) The Company shall ensure that all Proceeds (or an equal amount) are paid directly into (or as soon as practicable after receipt are transferred into) the Prepayment Account other than:

(i) any Net Sale Proceeds falling within paragraph (c) of Clause 9.3 (Mandatory prepayment from Net Sale Proceeds); and

(ii) any Insurance Proceeds falling within paragraph (c) of Clause 9.4 (Mandatory prepayment from Insurance Proceeds).

The Proceeds referred to in paragraphs (i) and (ii) above shall be immediately paid into the Prepayment Account if they are not applied for the purposes, and within the time, permitted by the relevant clause.

(c) Within five Business Days after the date (the “Receipt Date”) on which any such Proceeds have been received by any member of the Group (or have become Proceeds), the Company shall notify the Agent of the Receipt Date and of the amount in euro equal or equivalent to those Proceeds and the proposed date of prepayment of those proceeds (the “Prepayment Date”) must be at least five Business Days after the date of that Notice.

(d) No amount may be withdrawn or transferred from the Prepayment Account except:

(i) to make the prepayments required under Clause 9.8 (Application of Proceeds) or as otherwise permitted under this Agreement; or

(ii) with the prior consent of all the Lenders.

9.7 Application of Net Sale Proceeds and Insurance Proceeds

(a) Net Sale Proceeds and Insurance Proceeds paid into the Prepayment Account pursuant to Clause 9.6 (Prepayment Account) shall, subject to any other instruction of the Majority Lenders, be applied in the following order, in each case until the relevant Utilisations or other liabilities have been satisfied in full:

(i) first, in prepayment of the Facility A Loans;

(ii) second, in prepayment and permanent reduction pro rata of Facility B Loans and Facility C Loans and loans outstanding under the Ancillary Facilities;

(iii) third: in cancellation pro rata of any Available Commitment under Facility B and Facility C and release to the Company of the corresponding amount of cash from the Prepayment Account;

(iv) fourth, in prepayment and permanent reduction pro rata of any contingent liability under any Ancillary Facility; and

(v) fifth, in cancellation pro rata of any Available Ancillary Commitment under Facility B and Facility C.

(b) Any Proceeds to be applied in prepayment of any Facility A Loan under paragraph (i) above shall be applied on the earlier of the Prepayment Date and the last day of the Interest Period relating

to that Loan to the extent not prohibited by reason of any applicable financial assistance laws or other legal impediment, provided that in such case the Company shall use its reasonable endeavours, and shall procure that any other member of the Group uses its reasonable endeavours, to overcome any such impediment, failing which, such amount shall be applied in accordance with the order set out in paragraphs (ii) - (v) above.

(c) Any prepayment of Facility A Loans under this Clause 9.7 shall satisfy the obligations under Clause 8.1 (Repayment of Facility A Loans) in inverse chronological order.

(d) No Borrower may reborrow any part of a Facility which is prepaid pursuant to paragraphs (a)(i) and/or (a)(ii) above, and in the relevant Facility shall be cancelled to that extent.

9.8 Application of Capital Market Issue Proceeds

(a) Any Capital Market Issue Proceeds paid into the Prepayment Account pursuant to Clause 9.6 (Prepayment Account) shall be applied as follows, in each case until all Utilisations or other liabilities have been satisfied in full:

(i) first:

(A) subject to paragraph (e) below, 50 per cent. of the Capital Market Issue Proceeds in prepayment of Facility A Loans and in prepayment and permanent reduction of Facility B Loans or Facility C Loans; and

(B) 50 per cent. of the Capital Market Issue Proceeds, in prepayment and permanent reduction of Facility B Loans and Facility C Loans and loans outstanding under the Ancillary Facilities;

(ii) second, in cancellation pro rata of any Available Commitment under Facility B and Facility C and release to the Company of the corresponding amount of cash from the Prepayment Account;

(iii) third, in prepayment and permanent reduction pro rata of any contingent liability under any Ancillary Facility; and

(iv) fourth, in cancellation pro rata of any Available Ancillary Commitment under Facility B and Facility C.

(b) Any Proceeds to be applied in prepayment of any Facility A Loan under paragraph (a)(i)(A) above shall be applied on the earlier of the Prepayment Date and the last day of the interest Period relating to that Loan to the extent not prohibited by reason of any applicable financial assistance laws or other legal impediment, provided that in such case the Company shall use its reasonable endeavours, and shall procure that any other member of the Group uses its reasonable endeavours, to overcome any such impediment, failing which, such amount shall be applied in accordance with paragraph (a)(i)(B) above.

(c) Any prepayment of Facility A Loans under this Clause 9.8 shall satisfy the obligations under Clause 8.1 (Repayment of Facility A Loans) in the order specified by the Borrowers or, in the absence of any such specification in inverse chronological order.

(d) Any amount prepaid under this Clause 9.8 shall not be made available for re-borrowing and the relevant Facility shall be cancelled to that extent.

(e) The Borrower shall apply the amount described in paragraph (a)(i) above against the Facility A Loans, Facility B Loans and/or Facility C Loans as the Borrower may select in respect of application against the Facilities and repayment instalments.

9.9 Voluntary cancellation

The Company may, if it gives the Agent not less than 10 Business Days’ (or such shorter period as the Majority Facility B Lenders or Majority Facility C Lenders may agree) prior notice, cancel the whole or any part (being in the case of Facility B a minimum amount of €5,000,000 and in integral multiples of €500,000 and in the case of Facility C, USD5,000,000 and integral multiples of USD500,000) of an Available Facility. Any cancellation under this Clause 9.9 shall reduce the Commitments of the Lenders rateably under that Facility.

9.10 Voluntary prepayment of a Facility A Loan

(a) A Borrower to which a Facility A Loan, has been made may, if it gives the Agent not less than 10 Business Days’ (or such shorter period as the Majority Facility A Lenders may agree) prior notice, prepay the whole or any part of any Facility A Loan (but, if in part, being an amount that reduces the Base Currency Amount of the Facility A Loan by a minimum amount of €5,000,000 and in integral multiples of €500,000).

(b) A Facility A Loan may only be prepaid after the last day of the Availability Period (or, if earlier, the day on which the applicable Available Facility is zero).

(c) Any prepayment made under this Clause 9.10 shall be applied in prepayment of Facility A Repayment Instalments in chronological order.

9.11 Voluntary prepayment of Facility B Loans and Facility C Loans

The Borrower to which a Facility B Loan or Facility C Loan has been made may, if it gives the Agent not less than 10 Business Days’ (or such shorter period as the Majority Facility B Lenders or the Majority Facility C Lenders (as applicable) may agree) prior notice, prepay the whole or any part of a Facility B Loan or Facility C Loan, as applicable, (but, if in part, being an amount that reduces the Base Currency Amount of the Facility B Loan or Facility C Loan by a minimum amount of €5,000,000 and in integral multiples of €500,000).

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

(a) If:

(i) any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 14.2 (Tax gross-up); or

(ii) any Lender claims indemnification from the Company under Clause 14 (Tax gross-up and indemnities) or Clause 15 (Increased Costs),

the Company may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice of cancellation of the Commitment and Ancillary Commitment, if any, of that Lender and its intention to procure the repayment of that Lender’s

participation in the Loans or give the Agent notice of its intention to replace that Lender in accordance with paragraph (d) below.

(b) On receipt of a notice of cancellation referred to in paragraph (a) above, the Commitment and Ancillary Commitment, if any, of that Lender shall immediately be reduced to zero.

(c) On the last day of each Interest Period which ends after the Company has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Loan on utilisation of any Ancillary Facility is outstanding shall repay that Lender’s participation in that Loan or utilisation of Ancillary Facility granted by that Lender or, as the case may be, provide full cash cover in respect of a contingent liability under an Ancillary Facility.

(d) The Company may, in the circumstances set out in paragraph (a) above, on five Business Days’ prior notice to the Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 25 (Changes to the Finance Parties) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity selected by the Company which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 25 (Changes to the Finance Parties) for a purchase price in cash or other cash payment payable at the time of the transfer equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest (to the extent that the Agent has not given a notification under Clause 25.8 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents.

(e) The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions:

(i) the Company shall have no right to replace the Agent;

(ii) neither the Agent nor any Lender shall have any obligation to find a replacement Lender; and

(iii) in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents.

9.13 Restrictions

(a) Any notice of cancellation or prepayment given by any Party under this Clause 9 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

(b) Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

(d) Unless a contrary indication appears in this Agreement (including, for the avoidance of doubt, under Clause 9.7 (Application of Net Sale Proceeds and Insurance Proceeds), and Clause 9.8

(Application of Capital Market Issue Proceeds), any part of Facility B or Facility C which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement.

(e) The Borrowers 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.

(f) Subject to Clause 2.3 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

(g) If the Agent receives a notice under this Clause 9 it shall promptly forward a copy of that notice to either the Company or the affected Lender, as appropriate.

(h) If all or part of a Loan under a Facility is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2 (Further conditions precedent)), an amount of the Commitments (equal to the Base Currency Amount of the amount of the Loan which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment. Any cancellation under this paragraph (h) shall reduce the Commitments of the Lenders rateably under that Facility.

9.14 Right of cancellation in relation to a Defaulting Lender

(a) If any Lender becomes a Defaulting Lender, the Company may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent five Business Days’ notice of cancellation of each Available Commitment of that Lender.

(b) On the notice referred to in paragraph (a) above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

(c) The Agent shall, as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.

9.15 Effect of cancellation and prepayment on scheduled repayments

If any of the Facility A Loans are prepaid in accordance with Clause 9.12 (Right of replacement or repayment and cancellation in relation to a single Lender) or Clause 9.1 (Illegality) then the amount of the repayment instalment for each repayment date as set out in Clause 8.1 (Repayment of Facility A Loans) falling after that prepayment will reduce pro rata by the amount of the Facility A Loan prepaid.

SECTION 5

COSTS OF UTILISATION

10. INTEREST

10.1 Calculation of interest

The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

(a) Margin;

(b) LIBOR or, in relation to any Loan in euro, EURIBOR or, in relation to any Loan in NOK, NIBOR; and

10.2 Payment of interest

(a) The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six monthly intervals after the first day of the Interest Period).

(b) If the circumstances contemplated in paragraph (c) of the definition of Margin apply, the Company shall promptly pay to the Agent any amount necessary to put the Agent and Lenders in the position they would have been in had the appropriate rate of the Margin applied during that period.

10.3 Default interest

(a) If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to paragraph (b) below, is the sum of 2 per cent. and 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, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 10.3 shall be immediately payable by the Obligor on demand by the Agent.

(b) If any overdue amount consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

(i) the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

(ii) the rate of interest applying to the overdue amount during that first Interest Period shall be the sum of 2 per cent. and the rate which would have applied if the overdue amount had not become due.

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

10.4 Notification of rates of interest

The Agent shall promptly notify the relevant Lenders and the relevant Borrower of the determination of a rate of interest under this Agreement.

11. INTEREST PERIODS

11.1 Selection of Interest Periods

(a) A Borrower (or the Company on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan has already been borrowed) in a Selection Notice.

(b) Each Selection Notice for a Facility A Loan is irrevocable and must be delivered to the Agent by the Borrower (or the Company on behalf of a Borrower) to which that Facility A Loan was made not later than the Specified Time.

(c) If a Borrower (or the Company) fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will, subject to Clause 11.2 (Changes to Interest Periods), be three Months.

(d) Subject to this Clause 11, a Borrower (or the Company) may select an Interest Period of three or six Months for a Facility A Loan or an Interest Period of one, three or six Months for a Facility B Loan or a Facility C Loan, or any other period agreed between the Company and the Agent (acting on the instructions of all the Lenders participating in the relevant Loan). In addition a Borrower (or the Company on its behalf) may select an Interest Period of less than one Month (in relation to Facility A), if necessary to ensure that there are sufficient Facility A Loans (with an aggregate Base Currency Amount equal to or greater than the Repayment Instalment) which have an Interest Period ending on a Facility A Repayment Date for the Borrowers to make the Repayment Instalment due on that date.

(e) An Interest Period for a Loan shall not extend beyond the Termination Date applicable to its Facility.

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

(g) Each Facility B Loan and Facility C Loan has one Interest Period only.

11.2 Changes to Interest Periods

(a) Prior to determining the interest rate for a Facility A Loan, the Agent may shorten an Interest Period for any Facility A Loan to ensure that there are sufficient Facility A Loans with an Interest Period ending on a Facility A Repayment Date for the Facility A Borrower to make the Repayment Instalment due on that Facility A Repayment Date.

(b) If the Agent makes any of the changes to an Interest Period referred to in this Clause 11.2, it shall promptly notify the Company and the Lenders.

11.3 Non-Business Days

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

11.4 Consolidation and division of Facility A Loans

(a) Subject to paragraph (b) below, if two or more Interest Periods:

(i) relate to Facility A Loans made to the same Borrower; and

(ii) end on the same date,

those Facility A Loans will, unless that Borrower (or the Company on its behalf) specifies to the contrary in the Selection Notice for the next Interest Period, be consolidated into, and treated as, a single Facility A Loan on the last day of the Interest Period.

(b) Subject to Clause 4.4 (Maximum number of Loans) and Clause 5.3 (Currency and amount), if a Borrower (or the Company on its behalf) requests in a Selection Notice that a Facility A Loan be divided into two or more Facility A Loans that Facility A Loan will, on the last day of its Interest Period, be so divided with Base Currency Amounts specified in that Selection Notice, being an aggregate Base Currency Amount equal to the Base Currency Amount of the Facility A Loan immediately before its division.

12. CHANGES TO THE CALCULATION OF INTEREST

12.1 Absence of quotations

Subject to Clause 12.2 (Market disruption):

(a) if EURIBOR, LIBOR or NIBOR, as applicable, is to be determined by reference to the Base Reference Banks but a Base Reference Bank does not supply a quotation by the Specified Time on the Quotation Day, the applicable EURIBOR, LIBOR or NIBOR shall be determined on the basis of the quotations of the remaining Base Reference Banks; or

(b) if Clause 12.3 (Alternative Reference Bank Rate) applies but an Alternative Reference Bank does not supply a quotation before close of business in London on the date falling one Business Day after the Quotation Day for that Loan, the applicable Alternative Reference Bank Rate shall be determined on the basis of the quotations of the remaining Alternative Reference Banks.

12.2 Market disruption

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

(i) the Margin;

(ii) the Alternative Reference Bank Rate or (if an Alternative Market Disruption Event has occurred with respect to that Loan for the relevant Interest Period of that Loan)] the rate notified to the Agent by that Lender as soon as practicable and in any event by close of business on the date falling two Business Days after the Quotation Day (or, if earlier, on

the date falling two Business Days prior to the date on which interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select; and

(iii) the Mandatory Cost, if any, applicable to that Lender’s participation in the Loan.

(b) If:

(i) the percentage rate per annum notified by a Lender pursuant to paragraph (a)(ii) above is less than the Alternative Reference Bank Rate; or

(ii) a Lender has not notified the Agent of a percentage rate per annum pursuant to paragraph (a)(ii) above,

the cost to that Lender of funding its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be the Alternative Reference Bank Rate.

“Alternative Market Disruption Event” means:

(i) before close of business in London on the date falling one Business Day after the Quotation Day for the relevant Interest Period of the Loan, none or only one of the Alternative Reference Banks supplies a rate to the Agent to determine the Alternative Reference Bank Rate for the relevant Interest Period of the Loan; or

(ii) before close of business in London on the date falling two Business Days after the Quotation Day for the relevant Interest Period of the Loan, the Agent receives notifications from a Lender or Lenders (whose participations in that Loan exceed 35 per cent. of that Loan) that the cost to it of funding its participation in that Loan from whatever source it may reasonably select would be in excess of the Alternative Reference Bank Rate; and

“Market Disruption Event” means:

(iii) at or about noon on the Quotation Day for the relevant Interest Period the Screen Rate is not available and none or only one of the Base Reference Banks supplies a rate to the Agent to determine EURIBOR, LIBOR or NIBOR, as applicable, for the relevant currency and Interest Period; or

(iv) before close of business in London on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that Loan) that the cost to it of obtaining matching deposits in the Relevant Interbank Market would be in excess of EURIBOR, LIBOR or NIBOR, as applicable.

12.3 Alternative Reference Bank Rate

(a) If a Market Disruption Event occurs, the Agent shall as soon as is practicable request each of the Alternative Reference Banks to supply to it the rate at which that Alternative Reference Bank could have borrowed funds in the relevant currency and for the relevant period in the London

interbank market or, in relation to a Loan in euro, the European interbank market or in relation to a Loan in NOK, the Oslo interbank market at or about 11:00 a.m. or, in relation to a Loan in euro or NOK, at or about 11:00 a.m. (Brussels time) on the Quotation Day for the Interest Period of that Loan, were it to have done so by asking for and then accepting interbank offers for deposits in reasonable market size in the currency of that Loan and for a period comparable to the Interest Period of that Loan.

(b) As soon as is practicable after receipt of the rates supplied by the Alternative Reference Banks, the Agent will notify the Company and the Lenders of the arithmetic mean of the rates supplied to it in accordance with paragraph (a) above (rounded upwards to four decimal places) (the “Alternative Reference Bank Rate”).

12.4 Alternative basis of interest or funding

(a) If an Alternative Market Disruption Event occurs and the Agent or the Company so requires, the Agent and the Company shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.

(b) Any alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders and the Company, be binding on all Parties.

12.5 Break Costs

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

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

13. FEES

13.1 Commitment fee

(a) The Company shall pay to the Agent (for the account of each Lender) a fee in the Base Currency computed at the rate of [***] per cent. of the applicable Margin for each Facility per annum on that Lender’s Available Commitment for each Facility from the earlier of (i) the date of first Utilisation and (ii) 26 May 2010, up to and including the last day of the Availability Period as applicable to each Facility.

(b) The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the relevant Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.

(c) No commitment fee is payable to the Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

13.2 Arrangement and Participation Fee

The Company shall pay to the Agent (for the Arranger) arrangement and participation fees in the amounts and at the times agreed in a Fee Letter.

13.3 Agency fee

The Company shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

13.4 Ancillary Facility fees

The Company or the relevant Borrower shall pay to the relevant Ancillary Lender the Ancillary Facility fee(s), including the Ancillary Facility commitment fee(s), in the amount(s) and at the times agreed in the relevant Ancillary Facility Document.

13.5 Security agency fee

The Company shall pay to the Security Agent (for its own account) a security agency fee in the amount and at the times agreed in a Fee Letter.

SECTION 6

ADDITIONAL PAYMENT OBLIGATIONS

14. TAX GROSS-UP AND INDEMNITIES

14.1 Definitions

(a) In this Agreement:

“Protected Party” means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

“Tax Credit” means a credit against, relief or remission for, or repayment of any Tax.

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

“Tax Payment” means either the increase in a payment made by an Obligor to a Finance Party under Clause 14.2 (Tax gross-up) or a payment under Clause 14.3 (Tax indemnity).

“Treaty Lender” means, in respect of a jurisdiction, a Lender entitled under the provisions of a double taxation treaty to receive payments of interest from a person resident in that jurisdiction without a Tax Deduction (subject to the completion of any necessary procedural formalities).

(b) Unless a contrary indication appears, in this Clause 14 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

14.2 Tax gross-up

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

(b) The Company 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 it shall notify the Company and that Obligor.

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

(d) An Obligor is not required to make an increased payment to a Lender under paragraph (c) above for a Tax Deduction in respect of tax imposed on a payment of interest on a Loan, if on the date on which the payment falls due, 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 paragraph (g) below.

(e) 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.

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

(g) 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.

14.3 Tax indemnity

(a) The Company 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.

(b) Paragraph (a) above shall not apply:

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

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

(B) under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,

if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or

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

(A) is compensated for by an increased payment under Clause 14.2 (Tax gross-up); or

(B) would have been compensated for by an increased payment under Clause 14.2 (Tax gross-up) but was not so compensated solely because one of the exclusions in paragraph (d) of Clause 14.2 (Tax gross-up) applied.

(c) A Protected Party making, or intending to make, a claim under paragraph (a) above 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 Company.

(d) A Protected Party shall, on receiving a payment from an Obligor under this Clause 14.3, notify the Agent.

14.4 Tax Credit

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

(a) a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and

(b) that Finance Party has obtained, utilised and retained that Tax Credit,

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

14.5 Lender Status Confirmation

Each Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate, in the Transfer Certificate, Assignment Agreement or Increase Confirmation which it executes on becoming a Party, and for the benefit of the Agent and without liability to any Obligor, whether it is a Treaty Lender.

If a New Lender fails to indicate its status in accordance with this Clause 14.5 then such New Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Treaty Lender until such time as it notifies the Agent it is a Treaty Lender (and the Agent, upon receipt of such notification, shall inform the Company). For the avoidance of doubt, a Transfer Certificate, Assignment Agreement or Increase Confirmation shall not be invalidated by any failure of a Lender to comply with this Clause 14.5.

14.6 Stamp taxes

The Company shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.

14.7 Value added tax

(a) All amounts set out, or expressed in a Finance Document to be payable by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party).

(b) 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 “Subject Party”) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient will promptly pay to the Subject Party an amount equal to

any credit or repayment obtained by the Recipient from the relevant tax authority which the Recipient reasonably determines is in respect of such VAT.

(c) 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.

(d) Any reference in this Clause 14.7 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 the representative member of such group at such time (the term “representative member” to have the same meaning as in the Value Added Tax Act 1994).

15. INCREASED COSTS

15.1 Increased Costs

(a) Subject to Clause 15.3 (Exceptions) the Company 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 (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement.

(b) In this Agreement,

“Basel III” means:

(i) 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;

(ii) 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 Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

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

“Increased Costs” means:

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

(ii) an additional or increased cost; or

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

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

15.2 Increased Cost claims

(a) A Finance Party intending to make a claim pursuant to Clause 15.1 (Increased Costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Company.

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

15.3 Exceptions

(a) Clause 15.1 (Increased Costs) does not apply to the extent any Increased Cost is:

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

(ii) compensated for by Clause 14.3 (Tax indemnity) (or would have been compensated for under Clause 14.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 14.3 (Tax indemnity) applied);

(iii) compensated for by the payment of the Mandatory Cost;

(iv) attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or

(v) attributable to the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (“Basel II”) (but excluding any amendment arising out of Basel III) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

(b) In this Clause 15.3, a reference to a “Tax Deduction” has the same meaning given to the term in Clause 14.1 (Definitions).

16. OTHER INDEMNITIES

16.1 Currency indemnity

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

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

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

that Obligor shall as an independent obligation, within three Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

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

16.2 Other indemnities

The Company shall (or shall procure that an Obligor will), within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:

(a) the occurrence of any Event of Default;

(b) a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 29 (Sharing among the Finance Parties);

(c) funding, or making arrangements to fund, its participation in a Loan requested by a 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

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

16.3 Indemnity to the Agent and the Security Agent

The Company shall promptly indemnify the Agent and the Security Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

(a) investigating any event which it reasonably believes is a Default; or

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

17. MITIGATION BY THE LENDERS

17.1 Mitigation

(a) Each Finance Party shall, in consultation with the Company, 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 9.1 (Illegality), Clause 14 (Tax gross-up and indemnities) or Clause 15 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

(b) Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.

17.2 Limitation of liability

(a) The Company 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 17.1 (Mitigation).

(b) A Finance Party is not obliged to take any steps under Clause 17.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

18. COSTS AND EXPENSES

18.1 Transaction expenses

The Company shall promptly on demand pay the Agent, the Security Agent, the Arranger and the Bookrunner the amount of all costs and expenses (including internal and external legal fees, travel and printing expenses) reasonably incurred by any of them in connection with the negotiation, preparation, printing and execution of:

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

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

18.2 Amendment costs

If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 30.10 (Change of currency), the Company shall, within three Business Days of demand, reimburse the Agent and the Security Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent or the Security Agent in responding to, evaluating, negotiating or complying with that request or requirement.

18.3 Enforcement costs

The Company shall, within three Business Days of demand, pay to each Secured Party the amount of all costs and expenses (including legal fees) incurred by that Secured Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

18.4 Security Agent expenses

The Company shall promptly on demand pay the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with the administration or release of any Security created pursuant to any Security Document.

SECTION 7

GUARANTEE

19. GUARANTEE AND INDEMNITY

19.1 Guarantee and indemnity

Each Guarantor irrevocably and unconditionally jointly and severally:

(a) guarantees to each Guaranteed Finance Party punctual performance by each Borrower of all that Borrower’s obligations under the Finance Documents;

(b) undertakes with each Guaranteed Finance Party that whenever a 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

(c) agrees with each Guaranteed 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 a 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 19 if the amount claimed had been recoverable on the basis of a guarantee.

19.2 Continuing guarantee

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

19.3 Reinstatement

If any discharge release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, examinership, administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 19 will continue or be reinstated as if the discharge, release or arrangement had not occurred.

19.4 Waiver of defences

The obligations of each Guarantor under this Clause 19 will not be affected by an act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 19 (without limitation and whether or not known to it or any Guaranteed Finance Party) including:

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

(b) 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;

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

(d) 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;

(e) 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, or change to any facility or the addition of any new facility made available under any Finance Document or other document or security;

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

(g) any insolvency, examinership or similar proceedings; or

(h) anything which would not have released or reduced the liability of the Guarantor had it been a principal debtor of the Lender instead of a guarantor.

19.5 Immediate recourse

Each Guarantor waives any right it may have of first requiring any Guaranteed Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 19. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

19.6 Appropriations

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

(a) refrain from applying or enforcing any other moneys, security or rights held or received by that Guaranteed 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

(b) hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 19.

19.7 Deferral of Guarantors’ rights

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent or, as the case may be, the Security Agent otherwise directs, no Guarantor will exercise any rights which it may

have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 19:

(a) to be indemnified by an Obligor;

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

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

(d) 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 19.1 (Guarantee and indemnity);

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

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

If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Agent or as the Agent may direct for application in accordance with Clause 30 (Payment mechanics).

19.8 Release of Guarantors’ right of contribution

If any Guarantor (a “Retiring Guarantor”) ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:

(a) 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

(b) 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.

19.9 Additional security

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

19.10 Limitation on guarantees by Norwegian Guarantors

Without limiting the generality of the foregoing, the obligations and liabilities of any Guarantor incorporated in Norway (other than the Company), in its capacity as a Guarantor under this Clause 19 or as provider of Security under or pursuant to any Security Document, shall be deemed to have been given only to the extent that such guarantee or providing of Security does not violate Section 8-10 of the Norwegian Limited Companies Act (lov av 13. juni 1997 nr 44 om aksjeselskaper - the “Act”) (as amended).

19.11 Limitations on guarantees by Dutch Guarantors

The guarantee of any Dutch Guarantor shall be deemed to have been given only to the extent that such guarantee does not violate the prohibition on financial assistance contained in Sections 2:98c and 2:207c of the Dutch Civil Code (Burgerlijk Wetboek).

19.12 Limitations on guarantees by Belgian Guarantors

The obligations of any Guarantor which is incorporated and existing under the laws of Belgium (a “Belgian Guarantor”), in its capacity as a Guarantor under this Clause 19, shall not include any liability which would constitute an illegal financial assistance (as determined in Article 629 of the Belgian Companies Code) and shall be limited, at any time, to a maximum aggregate amount equal to the greater of:

(a) an amount equal to 90 per cent. of that Belgian Guarantor’s net assets (as determined in accordance with the Belgian Companies Code and accounting principles generally accepted in Belgium) as shown by its most recent audited annual financial statements at the time the relevant demand is made or, where such annual financial statements are older than three months, on the date on which the relevant demand is made, by audited interim accounts not older than three months; or

(b) the aggregate of (i) the outstanding principal amounts borrowed by that Belgian Guarantor under any Finance Documents and (ii) (excluding amounts already included under (i) above and without double counting) any outstanding intra-group loans, advances or facilities made to the Belgian Guarantor and its Subsidiaries by any other member of the Group directly and/or indirectly using all or part of the proceeds under any Finance Documents (whether or not such intra-group loan is retained by the relevant Belgian Guarantor or the relevant Subsidiary for its own purposes or on-lent) at the time the relevant demand is made.

19.13 Limitations on guarantees by Guarantors incorporated in Delaware, or any other state of the United States

The obligations guaranteed under this Agreement by any Additional Guarantor incorporated in Delaware, or any other state of the United States, as applicable, shall be limited to such amount as will, after giving effect to such maximum amount and all other (contingent or otherwise) liabilities of that Additional Guarantor that are relevant under such laws and after giving effect to any rights to contribution pursuant to any agreement providing for a equitable contribution among that Additional Guarantor and any other Guarantor, result in the obligations in respect of which this Agreement relates in respect of such maximum amount not constituting a fraudulent transfer or conveyance.

19.14 Limitations on guarantees by Guarantors incorporated in England and Wales, Scotland or Northern Ireland

The obligation and liabilities of any Guarantor which is incorporated and existing under the laws of England and Wales, Scotland or Northern Ireland in its capacity as Guarantor under this Clause 19 shall not apply to any liability to the extent it would result in this guarantee constituting unlawful financial assistance within the meaning of sections 678 or 679 of the Companies Xxx 0000.

19.15 Limitation in relation to Additional Guarantors

The guarantee of any Additional Guarantor is subject to any limitations relating to that Additional Guarantor set out in any relevant Accession Deed.

SECTION 8

REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT

20. REPRESENTATIONS

Each Obligor makes the representations and warranties set out in this Clause 20 to each Finance Party on the dates set out in Clause 20.24 (Times when representations made) (in the case of any Obligor other than the Company, only in relation to itself and, to the extent expressed to be applicable to them, its Subsidiaries (if any)).

20.1 Status

(a) It is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation.

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

20.2 Binding obligations

The obligations expressed to be assumed by it in each Finance Document to which they are a party are legal, valid, binding and enforceable, subject to:

(a) any applicable Reservations; or

(b) in the case of any Security Document, any applicable Perfection Requirements and the requirements specified at the end of Clause 20.5 (Validity and admissibility in evidence).

20.3 Non-conflict with other obligations

The entry into and performance by it of, and the transactions contemplated by, the Finance Documents do not and will not conflict with:

(a) any law or regulation applicable to it;

(b) its or any of its Subsidiaries’ constitutional documents; or

(c) any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries’ assets,

nor (except as provided in any Security Document) result in the existence of, or oblige it to create, any Security over any of its assets.

20.4 Power and authority

It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.

20.5 Validity and admissibility in evidence

All Authorisations required or desirable:

(a) 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;

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

(c) to enable it to create the Security to be created by it pursuant to any Security Document and to ensure that such Security has the priority and ranking it is expressed to have; and

(d) to enable it to carry on its business as it is being conducted from time to time if failure to obtain, comply with or maintain any such Authorisation would reasonably be expected to have a Material Adverse Effect,

have been obtained or effected and are in full force and effect save for complying with any applicable Perfection Requirements will have been obtained or effected and will be in full force and effect before the first Utilisation Request.

20.6 Governing law and enforcement

Subject to any applicable Reservations:

(a) the choice of law specified in each Finance Document as the governing law of that Finance Document will be recognised and enforced in its jurisdiction of incorporation; and

(b) any judgment obtained in England in relation to a Finance Document (or in the jurisdiction of the governing law of that Finance Document) will be recognised and enforced in its jurisdiction of incorporation and, in relation to a Finance Document governed by a law other than English law, in the jurisdiction of the governing law of that Finance Document.

20.7 Deduction of Tax

It is not required to make any deduction for or on account of Tax from any payment it may make under any Finance Document; except for the withholding tax applicable in the Republic of Chile in the amount of 35 per cent., or a lower rate withholding tax if a double tax treaty applies, that may be payable on any payment of interest made by a Chilean Guarantor under the Security Documents to a Lender not domiciled or resident in Chile.

20.8 No filing or stamp taxes

Under the law of its jurisdiction of incorporation it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents, save in each case for complying with any applicable Perfection Requirements.

20.9 No default

(a) No Default is continuing or might reasonably be expected to result from the making of any Utilisation, or the entry into, performance of, or transactions contemplated by, any Finance Document.

(b) 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.

20.10 Information Package

(a) Any factual information in the Information Package was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.

(b) Any financial projections in the Information Package have been prepared on the basis of recent historical information and on the basis of reasonable assumptions at the time of such preparation.

(c) Any expressions of opinion or intention provided by or on behalf of any member of the Group in connection with any Finance Document, including any expressions of opinion or intention in the Information Package, were made after due and careful consideration and based on reasonable grounds.

(d) So far as it is aware after due and careful review and enquiries, nothing has occurred or been omitted from the Information Package and no information has been given or withheld that results in:

(i) any factual information in the Information Package being untrue or misleading in any material respect;

(ii) any financial projection or expression of opinion or intention in the Information Package being untrue or misleading in any material respect; or

(iii) any assumption or ground on which any financial projection or expression of opinion or intention in the Information Package is based being unreasonable.

(e) So far as it is aware after due and careful review and enquiries, it has made full disclosure of all material facts in relation to the Group to the Arranger.

(f) There is no matter disclosed in any disclosure document which has made or would reasonably be expected to make any of the factual information, financial projections or expressions of opinion or intention in the Information Package untrue or misleading in any material respect.

20.11 Financial statements

(a) Its Original Financial Statements were prepared in accordance with GAAP consistently applied.

(b) Its Original Financial Statements fairly represent its financial condition and operations (consolidated in the case of the Company) as at the end of and for the relevant financial year.

(c) There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of the Group, in the case of the Company) since the date of the most recent financial statements provided in accordance with this Agreement.

20.12 Pari passu ranking

(a) Subject to any applicable Perfection Requirements, each Security Document creates (or, once entered into, will create) in favour of the Security Agent for the benefit of the Secured Parties the Security which it is expressed to create with the ranking and priority it is expressed to have.

(b) Without limiting paragraph (a) above, its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

(c) The constitutional documents of any member of the Group and the Shareholders’ Agreement do not and would not restrict or inhibit in any manner any transfer of any shares of any member of the Group which are expressed to be (or are required by this Agreement to be or become) subject to any Security under any Security Document.

20.13 No proceedings pending or threatened

(a) No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect have (to the best of its knowledge and belief) been started or threatened against it or any of its Subsidiaries.

(b) No labour disputes which would reasonably be expected to have a Material Adverse Effect have been started or (to the best of its knowledge and belief) threatened against it or any of its Subsidiaries, nor are there any circumstances likely to give rise to any such disputes.

20.14 Title

It has good and marketable title to the assets subject to the Security created by it pursuant to any Security Document, free from all Security except the Security created pursuant to, or permitted by, the Finance Documents.

20.15 Assets

It and each of its Subsidiaries has good and marketable title to, or valid leases or licences of, or is otherwise entitled to use (in each case, on arm’s length terms), all material assets necessary for the conduct of its business as it is being, and is proposed to be, conducted.

20.16 Environmental laws and licences

It and each of its Subsidiaries has:

(a) complied with all Environmental Laws to which it may be subject;

(b) obtained all Environmental Licences required or desirable in connection with its business; and

in each case where failure to do so might have a Material Adverse Effect.

20.17 Environmental releases

No:

(a) property currently or previously owned, leased, occupied or controlled by it or any of its Subsidiaries (including any offsite waste management or disposal location utilised by it or any of its Subsidiaries) is contaminated with any Hazardous Substance; and

(b) discharge, release, leaching, migration or escape of any Hazardous Substance into the Environment has occurred or is occurring on, under or from that property,

in each case in circumstances where this might have a Material Adverse Effect.

20.18 Dutch Obligors

No works council (ondernemingsraad) has the right to give advice in relation to the entry into and performance of this Agreement.

20.19 Irish Obligors

(a) It will not by executing the Finance Documents to which it is party or any of them and/or complying with its obligations thereunder including but not limited to its obligations under Clause 19 (Guarantee and Indemnity) of this Agreement be providing unlawful financial assistance as prohibited by section 60(1) of the Irish 1963 Act.

(b) It will not by executing the Finance Documents to which it is party or any of them and/or complying with its obligations thereunder including but not limited to its obligations under Clause 19 (Guarantee and Indemnity) of this Agreement be providing a loan or quasi-loan or credit transaction or a guarantee or security granted in connection with a loan or quasi-loan or credit transaction to or for the benefit of its own directors or the directors of its holding company (or any person connected to such persons) as prohibited by section 31 of the Irish 1990 Act because the provisions of section 35 of the Irish 1990 Act apply.

20.20 No immunity

In any proceedings taken in the jurisdiction of incorporation of an Obligor in relation to the Finance Documents to which it is a party, such Obligor shall not be entitled to claim for itself or any of its assets, immunity from suit, execution, attachment or other legal process.

20.21 No breach of law

It has not (and none of its Subsidiaries has) breached any law or regulation which breach has, or would reasonably be expected to have, a Material Adverse Effect.

20.22 Intellectual Property

(a) Each member of the Group owns or has licensed to it on arm’s length terms all material Intellectual Property for the conduct of its business as it is being, and is proposed to be, conducted except to the extent disclosed in writing to the Agent prior to the date of this Agreement.

(b) Each member of the Group has taken all necessary action (including payments of fees) to safeguard, maintain in full force and effect and preserve its ability to enforce all such Intellectual Property.

(c) No member of the Group has infringed any material Intellectual Property of any third party in any material respect except to the extent disclosed in writing to the Agent prior to the date of this Agreement.

(d) There has been no material infringement or threatened or suspected infringement of or challenge to the validity of any Intellectual Property owned by or licensed to any member of the Group.

(e) No disclosure has been or will be made of any material trade secret which is Intellectual Property and is owned by or licensed to any member of the Group other than under enforceable confidentiality undertakings.

20.23 Solvency

(a) No Obligor is insolvent or unable to pay its debts (including subordinated and contingent debts), nor could it be deemed by a court to be unable to pay its debts within the meaning of:

(i) (in the case of a company incorporated in England or Wales) Section 123(1)(e) or 123(2) of the Insolvency Xxx 0000; or

(ii) (in the case of any other company) the law of the jurisdiction in which it is incorporated,

nor, in any such case, will it become so in consequence of entering into any Finance Document and/or performing any transaction contemplated by any Finance Document.

(b) No Obligor has taken any corporate action nor have any legal proceedings or other procedure or step been taken, started or threatened in relation to anything referred to in Clause 24.7 (Insolvency proceedings).

20.24 Times when representations made

(a) The representations and warranties set out in this Clause 20 are made by each Original Obligor on the date of this Agreement.

(b) The Repeating Representations (and, in the case of sub-paragraph (ii) below, the representations and warranties set out in Clause 20.5 (Validity and admissibility in evidence) and Clause 20.8(No filing or stamp taxes)) are deemed to be made by each Obligor on:

(i) the date of each Utilisation Request and the first day of each Interest Period; and

(ii) in the case of an Additional Obligor, the day on which the company becomes (or it is proposed that the company becomes) an Additional Obligor,

in each case by reference to the facts and circumstances then existing.

21. INFORMATION UNDERTAKINGS

The undertakings in this Clause 21 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

21.1 Financial statements

The Company shall supply to the Agent in sufficient copies for all the Lenders:

(a) as soon as the same become available, but in any event within 120 days after the end of each of its financial years its audited consolidated financial statements for the Group for that financial year; and

(b) as soon as the same become available, but in any event within 60 days after the end of each of its Accounting Quarters the Group’s consolidated financial statements for that Accounting Quarter;

(c) as soon as the same become available, but in any event within 30 days after the end of each month the Group’s consolidated financial statements for that month, together with management commentary and a three month rolling liquidity forecast for the Group.

21.2 Compliance Certificate

(a) The Company shall supply to the Agent, with each set of financial statements delivered pursuant to paragraph (a) or (b) of Clause 21.1 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 22 (Financial covenants) as at the date as at which those financial statements were drawn up.

(b) Each Compliance Certificate shall be signed by the Chief Financial Officer of the Company or two directors of the Company and, if required to be delivered with the financial statements delivered pursuant to paragraph (a) of Clause 21.1 (Financial statements), shall be reported on by the Company’s auditors in the form agreed by the Company and all the Lenders before the date of this Agreement.

21.3 Requirements as to financial statements

(a) Each set of financial statements delivered by the Company pursuant to Clause 21.1 (Financial statements) shall be certified by the Chief Financial Officer of the Company or two directors of the Company as fairly representing its consolidated financial condition and operations as at the end of and for the period in relation to which those financial statements were drawn up.

(b) The Company shall procure that each set of financial statements delivered pursuant to Clause 21.1 (Financial statements) is prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements of the Company unless, in relation to any set of financial statements, it notifies the Agent that there has been a change in GAAP, the accounting practices or reference periods and its auditors deliver to the Agent:

(i) a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which the Original Financial Statements of the Company were prepared; and

(ii) sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether Clause 22 (Financial covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Company’s Original Financial Statements.

Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.

(c) Subject to paragraph (b) above, the Company may, on giving notice to the Agent, change on one occasion only the reporting currency in the financial statements delivered pursuant to Clause 21.1 (Financial statements) from NOK to euro.

(d) If the Company notifies the Agent of a change in accordance with paragraph (b) above, the Company and the Agent shall enter into negotiations in good faith with a view to agreeing any amendments to this Agreement which are necessary as a result of the change. To the extent practicable these amendments will be such as to ensure that the change does not result in any material alteration in the commercial effect of the obligations in this Agreement. If any amendments are agreed they shall take effect and be binding on each of the Parties in accordance with their terms.

21.4 Information: miscellaneous

The Company shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

(a) all documents dispatched by the Company to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;

(b) promptly upon becoming aware of them, the details of any litigation, arbitration, administrative proceedings or labour dispute which are current, threatened or pending against any member of the Group, and which might, if adversely determined, have a Material Adverse Effect;

(c) at the same time as they are dispatched, copies of all documents dispatched by the Company to its shareholders, in their capacity as shareholders generally (or any class of them) or its creditors generally (or any class of them);

(d) with each set of financial statements delivered pursuant to paragraph (a) of Clause 21.1 (Financial statements) a list of Material Subsidiaries as at the last date of the financial year to which those statements relate; and

(e) promptly, such further information regarding the financial condition, business and operations of any member of the Group, or in respect of the Charged Assets, as any Finance Party (through the Agent) may reasonably request.

21.5 Notification of default

(a) Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).

(b) Promptly upon a request by the Agent, the Company shall supply to the Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).

21.6 Presentations

(a) The directors and the chief financial officer of the Company shall give a presentation in each financial year to the Lenders, within 30 days after the Company has delivered its financial statements pursuant to paragraph (a) of Clause 21.1 (Financial statements), about the business, financial performance and prospects of the Group, and such other matters as any Finance Party (through the Agent) may reasonably request.

(b) If requested by the Agent, the directors and the chief financial officer of the Company shall give a presentation to the Lenders, at such time and place as the Agent may reasonably request, about the business, financial performance and prospects of the Group, and such other matters as any Finance Party (through the Agent) may reasonably request. The Agent may not request more than two presentations in any financial year under this paragraph (b), unless a Default is continuing.

21.7 Use of websites

(a) The Company may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the “Website Lenders”) who accept this method of communication by posting this information onto an electronic website designated by the Company and the Agent (the “Designated Website”) if:

(i) the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

(ii) both the Company and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and

(iii) the information is in a format previously agreed between the Company and the Agent.

If any Lender (a “Paper Form Lender”) does not agree to the delivery of information electronically then the Agent shall notify the Company accordingly and the Company shall supply the information to the Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Company shall supply the Agent with at least one copy in paper form of any information required to be provided by it.

(b) The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Company and the Agent.

(i) the Designated Website cannot be accessed due to technical failure;

(ii) the password specifications for the Designated Website change;

(iii) any new information which is required to be provided under this Agreement is posted onto the Designated Website;

(iv) any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

(v) the Company becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

If the Company notifies the Agent under paragraph (c)(i) or paragraph (c)(v) above, all information to be provided by the Company under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

(d) Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Company shall comply with any such request within 10 Business Days.

21.8 “Know your customer” checks

(a) If:

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

(ii) any change in the status of an Obligor after the date of this Agreement; or

(iii) a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,

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

(b) Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

(c) The Company shall, by not less than 10 Business Days’ prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 26 (Changes to the Obligors).

(d) Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Obligor obliges the Agent or any Lender to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Company shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Obligor.

22. FINANCIAL COVENANTS

22.1 Financial condition

The Company shall ensure that:

(a) the Gearing Ratio for each Relevant Period ending on a Relevant Date during the applicable period specified in the table below shall not exceed the ratio set out opposite that applicable period in the table below (as shown in the Compliance Certificate delivered under Clause 21.2 (Compliance Certificate) in respect of that relevant period):

Applicable period		Gearing Ratio

Date of this Agreement to the first anniversary of the date of this Agreement		3:50:1

The first anniversary of the date of this Agreement to second anniversary of the date of this Agreement		3:50:1

Second anniversary of the date of this Agreement to third anniversary of the date of this Agreement		3:25:1

Third anniversary of the date of this Agreement to the fourth anniversary of this Agreement		3:25:1

From the fourth anniversary of the date of this Agreement		3:00:1

(b) the Equity Ratio shall not at any time be less than the percentage specified in the table below during the applicable period specified in the table below:

Applicable period		Equity Ratio

From the date of this Agreement		40 per cent.

22.2 Financial covenant calculations

(a) EBITDA, Total Debt Costs and Net Interest Bearing Debt, shall be calculated and interpreted on a consolidated basis in accordance with the Applicable Accounting Principles and shall be expressed in NOK or, pursuant to paragraph (c) of Clause 21.3 (Requirements as to Financial Statements), euro.

(b) Capital Expenditure, EBITDA, and Total Debt Costs shall be determined (except as needed to reflect the terms of this Clause 22) from the financial statements of the Group and Compliance Certificates delivered under Clause 21.1 (Financial statements) and Clause 21.2 (Compliance Certificate).

(d) For the avoidance of doubt, to the extent a convertible bond has not been converted into equity, it shall be regarded as Financial Indebtedness of the Group for the purpose of calculating Net Interest Bearing Debt.

22.3 Auditors’ confirmation of EBITDA calculation - pro forma historical figures

(a) The Agent (at the request of the Majority Lenders and in consultation with the Company) may instruct auditors to confirm the calculation of the Group’s exceptional items and non-recurring items as referred to in paragraph (f) of the definition of EBITA in Clause 22.5 (Definitions).

(b) The Company shall assist any auditor instructed pursuant to paragraph (a) above in promptly providing any information reasonably requested and required for the purposes of confirming the calculation of the Group’s exceptional items and non-recurring items as referred to in paragraph (f) of the definition of EBITA in Clause 22.5 (Definitions).

22.4 If the Company or a member of the Group acquires or disposes of its interest in a Subsidiary, a business or assets, the EBITDA calculation for the relevant period shall be based on pro forma historical figures for the acquired or divested Subsidiary, business or assets.

22.5 Definitions

In this Clause 22:

“Cash” means any credit balance on any deposit, savings, current or other account, and any cash in hand, which is:

(a) freely withdrawable on demand;

(b) not subject to any Security (other than pursuant to any Security Document);

(d) capable of being remitted to an Obligor in Norway.

“Cash Equivalent Investments” means:

(a) securities with a maturity of less than 12 months from the date of acquisition issued or fully guaranteed or fully insured by the Government of the United States or any member state of the European Union, Norway or Canada which is rated at least A-1 by Standard & Poor’s Ratings Group or P-1 by Xxxxx’x Investors Service, Inc.;

(b) commercial paper or other debt securities issued by an issuer rated at least A-1 by Standard & Poor’s Ratings Group or P-1 by Xxxxx’x Investors Service, Inc. and with a maturity of less than 12 months; and

(c) certificates of deposit or time deposits of any commercial bank (which has outstanding debt securities rated as referred to in paragraph (b) above) and with a maturity of less than three months,

in each case not subject to any Security (other than pursuant to any Security Document), denominated and payable in freely transferable and freely convertible currency and the proceeds of which are capable of being remitted to an Obligor in Norway.

“EBIT” means in relation to any Relevant Period, the consolidated earnings before interest expenses and taxes of the Group required by IFRS to be shown in the latest financial statements of the Group for that Relevant Period delivered under Clause 21.1 (Financial Statements).

“EBITDA” means, in relation to any Relevant Period, the EBIT of the Group for that Relevant Period:

(a) after adding back all amounts provided for depreciation and amortisation for that Relevant Period;

(b) after adding back or deducting (as the case may be) the Fair Value adjustment to be made in accordance with IFRS (IAS 41) (“Fair value adjustment biological assets”) and the Onerous Contract provisions to be made in accordance with IFRS (IAS 37) (“Onerous contracts provision”);

(c) after adding back or deducting (as the case may be) the fair value adjustment of foreign exchange hedging instruments;

(d) [***];

(e) [***];

but excluding:

(f) profit attributable to minority interests;

(g) exceptional items or non-recurring items provided that, for the purposes of calculating the Gearing Ratio pursuant to paragraph (a) of Clause 22.1 (Financial Condition), the net adjustments for exceptional items and non-recurring items originating during or at any time after the Accounting Quarter ending 31 March 2010, shall not exceed a maximum amount of NOK [***] per Accounting Quarter, and the aggregate amount of adjustments for such exceptional items and non-recurring items shall not exceed NOK [***] in any Relevant Period);

(h) any profit or loss arising on the disposal of fixed or intangible assets;

(i) amounts written off the value of fixed or intangible asset investments (but including the amounts of any reversal of previous write-offs); and

(j) income from participating interests in associated undertakings and income from any other fixed asset investment.

“Equity Ratio” means the ratio of Total Equity to Total Assets.

“Gearing Ratio” means the ratio of Net Interest Bearing Debt to EBITDA.

“Net Interest Bearing Debt” means, as at any particular time, the aggregate outstanding principal, capital or nominal amount (and any fixed or minimum premium payable on prepayment or redemption) of the interest-bearing Financial Indebtedness of members of the Group,

(i) including any convertible bonds issued prior to, or after the date of this Agreement to the extent such bonds have not been converted to shareholders equity;

(ii) after deducting the amount of any unamortised set-up expenses of the Company’s financing arrangements required by the Applicable Accounting Principles to be classified as negative interest bearing debt; and

(iii) excluding any indebtedness referred to in paragraph (g) of the definition of Financial Indebtedness and any guarantee or indemnity in respect of that indebtedness,

and provided that any Financial Indebtedness referred to in paragraph (i) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose), less Cash or Cash Equivalent Investments.

For this purpose, any amount outstanding or repayable in a currency other than euro shall on that day be taken into account in its euro equivalent at the rate of exchange that would have been used had an audited consolidated balance sheet of the Group been prepared as at that day in accordance with the GAAP applicable to the Original Financial Statements of the Company.

“Relevant Date” means the last day of any Accounting Quarter.

“Relevant Period” means each period of four consecutive Accounting Quarters ending on a Relevant Date.

“Total Assets” means the total book value of the Group’s assets, as reflected in its most recent consolidated balance sheet.

“Total Equity” means the consolidated shareholders’ equity of the Group, including subordinated loans, as reflected in its most recent consolidated balance sheet.

23. GENERAL UNDERTAKINGS

The undertakings in this Clause 23 remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

23.1 Authorisations

(a) Each Obligor shall (and the Company shall ensure that each other member of the Group will) promptly obtain, comply with and do all that is necessary to maintain in full force and effect (and supply certified copies to the Agent of) any Authorisation required under any applicable law or regulation of a Relevant Jurisdiction to:

(i) enable it to perform its obligations under the Finance Documents;

(ii) ensure the legality, validity, enforceability or admissibility in evidence in the Relevant Jurisdictions of any Finance Document; and

(iii) enable it to carry on its business as it is being conducted from time to time if failure to obtain, comply with or maintain any such Authorisation would reasonably be expected to have a Material Adverse Effect.

(b) The Company shall ensure that the Perfection Requirements are complied with promptly and in any event before the earlier of (i) the date which is 60 days after signing of the relevant Finance Document or Security Document or (ii) the final date on which it is necessary to carry out any

such Perfection Requirement in order to achieve the relevant perfection, protection or priority of any Security Document.

23.2 Compliance with laws

Each Obligor shall comply in all respects with all laws to which it may be subject, if failure so to comply would reasonably be expected to have a Material Adverse Effect.

23.3 Negative pledge

In this Clause 23.3 “Quasi-Security” means an arrangement or transaction described in paragraph (b) below:

(a) No Obligor shall (and the Company shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets.

(b) No Obligor shall (and the Company shall ensure that no other member of the Group will):

(i) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;

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

(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or

(iv) enter into any other preferential arrangement having a similar effect,

in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.

(i) any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;

(ii) any lien arising by operation of law and in the ordinary course of business;

(iii) any Security or Quasi-Security arising under the General Terms and Conditions (Algemene Bankvoorwaarden) or the equivalent in any jurisdiction of banking or financing institutions (other than under any provision which allows for such banking or financial institutions to call for Security or Quasi-Security to be provided in terms set out in or substantially equivalent to those set out in Article 20 of the General Terms and Conditions applicable to Dutch banks)

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

(A) the Security or Quasi-Security was not created in contemplation of the acquisition of that company;

(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company;

(C) the benefit of the Security or Quasi-Security is not transferred to any other person other than a person who receives a corresponding transfer of the indebtedness secured thereby; and

(D) the Security or Quasi-Security is removed or discharged within six months of that company becoming a member of the Group;

(v) the Security or Quasi-Security created pursuant to any Security Document;

(vi) any Security or Quasi-Security over any Obligor’s or other member of the Group’s assets existing on the date of this Agreement, in respect of Permitted Existing Financial Indebtedness, as set out in Schedule 15 (Permitted Existing Financial Indebtedness and Security) provided that the principal amount secured by such Security or Quasi-Security shall not be increased; or

(vii) any Security or Quasi-Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security or Quasi-Security given by any member of the Group other than as permitted under paragraphs (i) to (vi) above) does not at any time exceed [***] (or its equivalent in another currency or currencies).

23.4 Financial Indebtedness

(a) No Obligor shall (and the Company shall ensure that no other member of the Group will) incur (or agree to incur) or have outstanding any Financial Indebtedness.

(b) Paragraph (a) above does not apply to:

(i) Financial Indebtedness referred to in paragraph (b) of Clause 23.6 (Loans and guarantees);

(ii) Financial Indebtedness arising under the Finance Documents;

(iii) any Financial Indebtedness of a company which becomes a member of the Group after the date of this Agreement, where the Financial Indebtedness is incurred prior to the date on which that company becomes a member of the Group if:

(A) the Financial Indebtedness was not incurred in contemplation of the acquisition of that company;

(B) the Financial Indebtedness is repaid, prepaid or cancelled in full within [***] of that company becoming a member of the Group;

(iv) any Financial Indebtedness permitted under Clause 23.19 (Hedging);

(v) any Financial Indebtedness to the extent covered by a guarantee, bond or letter of credit issued under an Ancillary Facility;

(vi) Permitted Existing Financial Indebtedness;

(vii) Financial Indebtedness arising from the issuance or issuances of one or more convertible or regular bonds with an aggregate maximum subscription amount not exceeding EUR [***] provided that:

(A) any such bond issued is unsecured;

(B) any such bond ranks pari passu with, or subordinated to the Facilities; and

(C) the proceeds are applied in accordance with Clause 9.5 (Capital Market Issue Proceeds) and Clause 9.8 (Application of Capital Market Issue Proceeds); and

(viii) any Financial Indebtedness (other than falling within paragraph (g) of the definition of Financial Indebtedness) provided that any Financial Indebtedness referred to in paragraphs (h) or (j) of the definition of Financial Indebtedness shall only be counted once for this purpose) not falling within paragraphs (i) to (vi) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies).

23.5 Disposals

(a) No Obligor shall (and the Company shall ensure that no other member of the Group will) enter into a single transaction or a series of transactions (whether related or not and whether voluntary or involuntary) to sell, lease, transfer or otherwise dispose of any asset.

(b) Paragraph (a) above does not apply to any sale, lease, transfer or other disposal of an asset (other than a Charged Asset):

(i) made in the ordinary course of trading of the disposing entity;

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

(iii) from a member of the Group to another member of the Group;

(iv) made on arm’s length terms and for fair market value where the consideration receivable (when aggregated with the higher of the market value or consideration receivable for any other sale, lease, transfer or other disposal other than any permitted under paragraphs (i) to (iii) above) does not exceed [***] per cent. of the consolidated total assets of the Group (or its equivalent in another currency or currencies) in any calendar year; or

(v) with the prior written consent of the Majority Lenders.

(c) Paragraph (a) above does not apply to any sale, lease, transfer or other disposal in the ordinary course of trading of the disposing entity of any Charged Asset subject only to a floating charge before the floating charge crystallises or the security created pursuant to the Security Documents has become enforceable.

23.6 Loans and guarantees

(a) No Obligor shall (and the Company shall ensure that no other member of the Group will):

(i) make any loan, or provide any form of credit or financial accommodation, to any other person; or

(ii) give or issue any guarantee, indemnity, bond or letter of credit to or for the benefit of, or in respect of liabilities or obligations of, any other person or voluntarily assume any liability (whether actual or contingent) of any other person,

(together, “Financial Support”).

(b) Paragraph (a) above does not apply to:

(i) loans, guarantees, indemnities under or expressly permitted by the Finance Documents;

(ii) Financial Support made, granted or given in the ordinary course of business;

(iii) Financial Support made, granted or given by any member of the Group to or for the benefit of any member of the Group;

(iv) Financial Support made or to be made in connection with any credit facility made available for members of the Group through any cash management arrangements or any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances; or

(v) Financial Support not falling within paragraphs (i) to (iv) above, the aggregate outstanding principal amount of which across the Group does not at any time exceed [***] (or its equivalent in another currency or currencies).

23.7 Pari passu

Each Obligor shall ensure that its obligations under the Finance Documents rank at all times at least pari passu in right of priority and payment with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

23.8 Merger

(a) No Obligor shall (and the Company shall ensure that no other member of the Group will) enter into any amalgamation, demerger, merger or corporate reconstruction.

(b) Paragraph (a) above does not apply to:

(i) a solvent reorganisation within the Group;

(ii) any merger, consolidation or other reorganisation in which the Company or any of its Subsidiaries is the surviving entity and which will not have a Material Adverse Effect on the ability of the Company or its Subsidiaries to perform its obligations under this Agreement; or

(iii) any other merger, consolidation or reorganisation to which the Majority Lenders have given their prior written consent (which shall not be unreasonably withheld or delayed).

23.9 Change of business

The Company shall procure that no substantial change is made to the general nature of the business of the Company or the Group or the Obligors taken as a whole from that carried on at the date of this Agreement without the prior written consent of the Majority Lenders.

23.10 Insurance

Each Obligor shall (and the Company shall ensure that each other member of the Group will) maintain adequate insurances or captive insurance arrangements on and in relation to its business and assets with financially sound and reputable underwriters, insurance companies or funds against liabilities, casualties and contingencies, and to the extent, usually insured against by prudent companies located in the same or a similar location and carrying on a similar business.

23.11 Environmental undertakings

Each Obligor shall (and the Company shall ensure that each other member of the Group will):

(a) comply with all Environmental Laws to which it may be subject;

(b) obtain all Environmental Licences required or desirable in connection with its business; and

in each case where failure to do so might have a Material Adverse Effect.

23.12 Environmental claims

Each Obligor shall (and the Company shall ensure that each other member of the Group will) promptly notify the Agent of any claim, notice or other communication received by it in respect of any actual or alleged breach of or liability under Environmental Law which, if substantiated, might have a Material Adverse Effect.

23.13 Acquisitions and investments

(a) No Obligor shall (and the Company shall ensure that no other member of the Group will) invest in or acquire any business or going concern, or the whole or substantially the whole of the assets or business of any person, or any assets that constitute a division or operating unit of the business of any person.

(b)

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Portions of this exhibit have been omitted pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. The omissions have been indicated by asterisks (“[***]”), and the omitted text has been filed separately...