Confidential Information

Counterparts

Governing law

Enforcement

AP WIP ArcCo Investments, LLC, a limited liability company formed in the state of Delaware, as issuer (the “Company”);

AP WIP Investments, LLC, a limited liability company formed in the state of Delaware, as guarantor (the “Guarantor”);

GLAS USA LLC, as registrar (the “Registrar”); and

THE ENTITIES listed in Part I of Schedule 1 (The Original Parties) as original subscribers and original holders (the “Original Subscribers” and the “Original Holders”).

DEFINITIONS AND INTERPRETATION

Definitions

for Restricted Cash” means a segregated account:

from which no withdrawals may be made by the Company except as contemplated by Clause 20.12 (Account for Restricted Cash);

which is subject to Security in favour of the Collateral Agent, such Security being in form and substance satisfactory to the Collateral Agent and Majority Holders (acting reasonably); and

into which approximately $45,000,000 as per the Funds Flow (or the equivalent in another currency, currency unit or combination thereof) will be deposited on or before the Initial Closing Date from the proceeds of the issue of the Class A Promissory Certificates or otherwise.

each such asset shall be an asset that belongs to the telecom / communications infrastructure sector and the Company is not aware of the asset being on a decommission list at the time of purchase;

each such asset shall be owned by the Group free and clear of any third party liens (inclusive of any repayment of such related debt through the use of proceeds) and backed (directly or indirectly) by long term economic communication infrastructure assets;

each such asset shall generate double or triple net equivalent revenue from exchange, data centre, tower, DAS and related revenue streams, as per Asset Tape;

at least 10 years weighted average remaining term carrier lease (with one renewal) and at least 5 years weighted average remaining term carrier lease (in place) at the time of acquisition (measured on a portfolio basis in respect of acquisitions made on a rolling 12-month period prior to the most recent Collection Period End Date) as per the Asset Tape to Company In-Place Quarterly Rent Tape. For the purposes of clarity, at closing, not less than 14 years weighted average remaining term (with one renewal);

the Net Balance shall not exceed 65% of the greater of (i) the aggregate historical allocated cost; and (ii) the weighted average historical purchase multiple times the Annualised In-Place Rent;

any asset which is a Property Asset shall be recorded on the Asset Tape or Company In-Place Quarterly Rent Tape;

no Default is continuing or would occur as a result of the acquisition of such asset; and

the purchase of such asset or assets adheres to the Core Concentration Criteria.

the number of tenants of a Property Asset is greater than or equal to one;

the Property Asset is owned and located in a Permitted Jurisdiction;

the Contract is executed and in-force; and

the Property Asset is operational and has not stopped paying (if completion notice has been given) or is in construction under an executed contract.

the Guarantor ceases to directly or indirectly to have more than 50 per cent control (whether by way of ownership of membership interests, proxy, contract, agency or otherwise) and give directions with respect to the operating and financial policies of the Group; or

the Guarantor ceases to own and control (legally and beneficially) a majority of the membership interests of the Company.

any member of the Group, the Guarantor or any of their respective advisers; or

another Holder, if the information was obtained by that Holder directly or indirectly from any member of the Group, the Guarantor or any of their respective advisers,

information that:

is or becomes public information other than as a direct or indirect result of any breach by that Holder of Clause 32.3(b) (Confidential Information); or

is identified in writing at the time of delivery as non-confidential by any member of the Group, the Guarantor or any of their respective advisers; and

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

from which no withdrawals may be made by the Company except as contemplated by Clause 20.11 (Debt Service Reserve Account);

which is subject to Security in favour of the Collateral Agent, which Security is in form and substance satisfactory to the Collateral Agent and Majority Holders (acting reasonably);

into which $5,000,000 (or the equivalent in another currency, currency unit or combination thereof) will be deposited on or before the Initial Closing Date from the proceeds of the issues made in respect of the Tranche A-1 Promissory Certificates or otherwise;

with respect to which the Minimum Required Balance is determined and required to be maintained in accordance with Clause 20.11 (Debt Service Reserve Account).

failure to deliver the Company In-Place Quarterly Rent Tape and Compliance Certificate for such Collection Period which shows the Company has complied with its obligations under Clause 19.1 (Financial condition) after giving effect to any related payments in respect of the current Payment Date;

non-payment of the most recent Quarterly Payment due in accordance with the terms of this Agreement;

Interest Coverage is less than 1.4:1 for the current Collection Period as at the relevant Payment Date;

Leverage exceeds 9.0:1 for the current and immediately preceding Collection Period;

the balance of the Debt Service Reserve Account is less than the Minimum Required Balance (after giving effect to any applicable Deposit); and

non-payment of the most recent Principal Payment Amount due in accordance with the terms of this Agreement,

the pollution or protection of the environment;

the conditions of the workplace; or

the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the environment, including, without limitation, any waste.

the occurrence of a Reportable Event, with respect to any Plan; or

the failure to meet the minimum funding standards of Section 412 or 430 of the Internal Revenue Code or Section 302 or 303 of ERISA with respect to any Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code or Section 302(c) of ERISA) or the failure to make a contribution or instalment required under Section 412 or Section 430(j) of the Internal Revenue Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; or

a determination that any Plan is, or is expected to be, in “at risk” status (as defined in Section 430 of the Internal Revenue Code or Section 303 of ERISA); (d) a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Internal Revenue Code or Section 305 of ERISA; or

a determination that any Multiemployer Plan is, or is expected to be, in “critical” or “endangered” status under Section 432 of the Internal Revenue Code or Section 305 of ERISA; or

the filing of a notice of intent to terminate any Plan of a notice of intent to terminate such Plan pursuant to Section 4041 of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); or

the cessation of operations at a facility of an Obligor or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; or

the withdrawal by an Obligor or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; or

the conditions for the imposition of a lien under Section 303(k) or 306(g) of ERISA or Section 430(k) or 433(g) of the Internal Revenue Code shall have been met with respect to any Plan; or

the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that could constitute grounds for the termination of, or the appointment of a trustee to administer; or

the imposition of liability on an Obligor or any ERISA Affiliate pursuant to Section 4062(e) or 4069(a) of ERISA or by reason of the application of Section 4212(c) of ERISA; or

the withdrawal of an Obligor or any ERISA Affiliate in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan or the receipt by an Obligor or any ERISA Affiliate of notice from any Multiemployer Plan that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; or

the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent, upon an Obligor or any ERISA Affiliate; or

receipt from the Internal Revenue Service of notice of the failure of any Plan to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any such Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code.

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

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or

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

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

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

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

the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with the Accounting Principles, be treated as a balance sheet liability;

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

any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);

any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of an underlying liability (but not, in any case, trade instruments) of an entity which is not an Obligor or member of the Group which liability would fall within one of the other paragraphs of this definition;

any amount raised by the issue of shares which are redeemable before the Maturity Date or are otherwise classified as borrowings under the Accounting Principles;

(A) any amount of any liability under an advance or deferred purchase agreement if (x) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (y) the agreement is in respect of the supply of assets or services and payment is due more than 60 days after the date of supply and (B) unsecured trade payables not evidenced by a note or other instrument and arising out of purchases of goods or services in the ordinary course of trading;

any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under the Accounting Principles; and

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

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

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

similar principles, rights and defences under the laws in any other jurisdiction; and

any other matters which are set out as qualifications or reservations as to matters of law of general application in any legal opinions provided in connection with the Finance Documents.

any refinancing, novation, deferral or extension;

any claim for breach of representation, warranty or undertaking or on an event of default or under any indemnity given under or in connection with any document or agreement evidencing or constituting any other liability or obligation falling within this definition;

any claim for damages or restitution; and

any claim as a result of any recovery by either Obligor of a Payment on the grounds of preference or otherwise,

except for as set out in sub-clause (b) below, the holders of at least 50.1 per cent. in principal amount of the Promissory Certificates at the time outstanding; or

in respect of any acceleration action taken in accordance with Clause 21.10 (Acceleration), the holders of at least 66 2/3 per cent. in principal amount of the Promissory Certificates at the time outstanding, but excluding for this purpose any Promissory Certificates then held by the Company or its Affiliates.

the ability of the Obligors (taken as a whole) to perform their payment obligations under the Finance Documents and/or their obligations under Clause 19.1 (Financial condition); or

the validity or enforceability of, or the effectiveness or ranking of any Security granted or purporting to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.

this Agreement (including but not limited to any Additional Tranches);

any trade credit incurred by the Company on normal commercial terms and in the ordinary course of its trading activities;

any subordinated loan made by the Guarantor or any of its Subsidiaries to the Company or any of its Subsidiaries;

any Treasury Transaction constituting spot and forward delivery foreign exchange contracts entered into in the ordinary course of business and not for speculative purposes; and

any Treasury Transaction entered into for the hedging of actual or projected real exposures arising in the ordinary course of trading activities of the Company and not for speculative purposes.

the Transaction Security;

any Security arising by operation of law and in the ordinary course of business and not as a result of any default or omission by any Obligor or member of the Group;

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 of members of the Group but only so long as (i) such arrangement does not permit credit balances of Obligors to be netted or set off against debit balances of members of the Group which are not Obligors; and (ii) such arrangement does not give rise to other Security over the assets of Obligors in support of liabilities of members of the Group which are not Obligors;

any payment or close out netting or set-off arrangement pursuant to any Treasury Transaction or foreign exchange transaction entered into by a member of the Group which constitutes Permitted Financial Indebtedness;

any Security or Quasi-Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods or services supplied to the Guarantor or a member of the Group in the ordinary course of business and on the supplier’s standard or usual terms and not arising as a result of any default or omission by the Guarantor or any member of the Group; or

any security created in favour of a third party over any assets that form part of the Excluded Group Security.

any freehold, leasehold or immovable property or other interest in real property; and

any buildings, fixtures, fittings, fixed plant or machinery from time to time situated on or forming part of that freehold, leasehold or immovable property.

the date on which a redemption is made in accordance with Clause 7 (Redemption); or

the Maturity Date.

its jurisdiction of incorporation;

any jurisdiction where any asset subject to or intended to be subject to the Transaction Security to be created by it is situated;

any jurisdiction where it conducts its business; and

the jurisdiction whose laws govern the perfection of any of the Transaction Security Documents entered into by it.

the sum of the “fair value” of the assets of the relevant Obligor (as applicable) and its Subsidiaries, taken as a whole, exceeds the sum of all of their debts, taken as a whole, as such quoted term is determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors;

the “present fair saleable value of the assets” of the relevant Obligor (as applicable) and its Subsidiaries, taken as a whole, is not less than the amount that will be required to pay the probable liabilities (including contingent liabilities) of the relevant Obligor (as applicable) and its Subsidiaries, taken as a whole, on their debts as they become absolute and matured;

the capital of the relevant Obligor (as applicable) and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of the relevant Obligor (as applicable) and its Subsidiaries, taken as a whole, are or are about to become engaged in; and

the relevant Obligor (as applicable) and its Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay such debts as they mature in the ordinary course of business.

in respect of the Original Subscribers, the office or offices notified by the relevant Original Subscriber to the Company in writing on or before the date of this Agreement as the office or offices through which it will perform its obligations under this Agreement; and

in respect of any other Subscriber or Holder, the office specified against its name in the Register or such other office as such Subscriber or Holder may notify to the Company in accordance with Clause 28 (Notices).

Construction

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

any “Subscriber”, any “Holder”, any “Obligor”, any “Collateral Agent”, any “Registrar” or any “Party” shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;

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

a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, (however fundamentally), novated, supplemented, extended or restated from time to time (whether or not the relevant amendment, novation, supplement, extension or restatement was contemplated at the date of this Agreement), and including cases where the amendments concerned involve any extension of the maturity of the Promissory Certificates or any increase in the principal amount of the Promissory Certificates or other document or security;

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

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

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

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

a time of day is a reference to New York time unless otherwise specified.

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

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

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

Unless the context otherwise requires, a reference to a Clause or Schedule is to a Clause of, or Schedule to this Agreement and a reference to a paragraph is to a paragraph of this Agreement or the relevant Schedule.

The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement shall include the Schedules.

Currency symbols and definitions

“€”, “EUR” and “euro” denote the single currency of the Participating Member States.

“£”, “GBP” and “sterling” denote the lawful currency of the United Kingdom.

“$”, “USD”, “US Dollars”, “Dollars” and “dollars” denote the lawful currency of the US.

Third party rights

Unless expressly provided to the contrary in a Finance Document a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or to enjoy the benefit of any term of this Agreement or any Promissory Certificate.

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 or any Promissory Certificate at any time.

The Collateral Agent shall be an express third party beneficiary of this Agreement.

Meaning of Outstanding

it has been redeemed in full, or purchased in accordance with Clause 7 (Redemption), and in either case has been cancelled in accordance with Clause 8 (Cancellation);

proceedings to enforce a claim for principal and interest in respect of such Promissory Certificate have become barred; or

for the purposes of the definition of Majority Holders and Clause 32.2 (All Holder matters) only, it is held by, or by any person for the benefit of, the Company, any other member of the Group or any of their Affiliates.

AUTHORISATION OF PROMISSORY CERTIFICATES AND GUARANTEE

Authorisation of the Promissory Certificates

The Company has authorised the creation and issue of the Promissory Certificates pursuant to this Agreement.

The Promissory Certificates will be in registered form and in the Authorised Denominations and denominated in an Eligible Currency.

The Promissory Certificates will be represented by Promissory Certificate Vouchers.

The Company may from time to time issue Promissory Certificates in Tranches on a continuous basis subject to and in accordance with the terms of this Agreement.

Repayment of the Promissory Certificates will be secured by the Transaction Security Documents.

The Promissory Certificates are issued subject to, and with the benefit of, this Agreement and the other Finance Documents.

Authorisation of the Guarantee

Constitution of the Promissory Certificates

Purpose of the Promissory Certificates

working capital for the Group, including general corporate purposes and the making of Asset Acquisitions;

funding the Account For Restricted Cash and the Debt Service Reserve Account;

transaction costs;

repayment of the Company’s existing parent intercompany debt provided the Obligors are in compliance with Clause 19.1(c) (Company Equity) and Clause 19.1(d) (Guarantor Equity); and

repayment of any third party mortgages.

ISSUE AND SUBSCRIPTION OF THE PROMISSORY CERTIFICATES

Undertaking to issue

Undertaking to subscribe – Original Subscribers

Additional Tranche Notice

Subject to this Clause 3.3 (Additional Tranche Notice), the Company shall have the right to create and issue any Additional Tranches of Promissory Certificates of any Class (a “Certificate Issue”) following delivery of a notice (an “Additional Tranche Notice”) to the Registrar, the Holders and/or to any Third Party Subscriber substantially in the form set out in Schedule 11 (Form of Additional Tranche Notice) specifying:

the Issue Date of such Class of Promissory Certificates;

the relevant Class;

the applicable Interest Rate; and

the principal amount and currency (which must be an Eligible Currency) of such Promissory Certificates.

A separate Additional Tranche Notice must be delivered for each Class of Promissory Certificates.

Nothing in this Clause 3.3 (Additional Tranche Notice) nor any other provision of this Agreement (but subject to Clause 3.5 (Undertaking to Subscribe—Additional Subscriptions)) shall oblige any Holder and/or any Third Party Subscriber (as the case may be) to subscribe for any Additional Tranches of Promissory Certificates.

No consent to the issuance of any Promissory Certificates after the Initial Closing Date shall be required from the Holders provided on the applicable Issue Date no Default is continuing or would result from the proposed Promissory Certificates being issued.

On or before issuance of any Additional Tranche of Promissory Certificates (or any sub-tranche of a Class), Schedule 1 (The Original Parties) shall be updated by the Registrar to include the details of such Additional Tranche and/or sub-tranche. Accordingly, the Registrar shall provide the Parties with a copy of the updated Schedule 1 as soon as reasonably practicable following any update.

Undertaking to Issue – Additional Subscriptions

Undertaking to Subscribe – Additional Subscriptions

Each Subscriber undertakes to the Company and the Guarantor that, subject to and in accordance with the terms and conditions of this Agreement, it will subscribe for the relevant Class of Promissory Certificates in the principal amount and Class specified opposite such Subscriber’s name in Part I of Schedule 1 on the relevant Closing Date.

If a Holder or Third Party Subscriber (as the case may be) (a “Non-Performing Subscriber”) has failed to subscribe for a Certificate Issue in accordance with Clause 3.5(a) (Undertaking to Subscribe – Additional Subscriptions), the Company shall notify the other Holders and Third Party Subscribers (as the case may be) that are not Non-Performing Subscribers (a “Performing Subscriber”).

Any Performing Subscriber may notify the Company that it wishes to subscribe for a Certificate Issue in lieu of the Non-Performing Subscriber and, upon such notice, the Performing Subscriber shall be required to subscribe for a Certificate Issue within two Business Days of such notice and the Non-Performing Subscriber shall have no obligation (or right) to subscribe for such Certificate Issue. If more than one Performing Subscriber notifies the Company that it wishes to subscribe for a Certificate Issue pursuant to the foregoing, such Certificate Issue shall be subscribed for by the Performing Subscriber whose notification was received first by the Company.

Subject to Clause 3.5(b) (Undertaking to Subscribe – Additional Subscriptions), if any Performing Subscriber(s) does not notify the Company that it wishes to subscribe for a Certificate Issue in lieu of the Non-Performing Subscriber as set out in Clause 3.5(b) (Undertaking to Subscribe – Additional Subscriptions), then the Company may issue any unsubscribed Promissory Certificates to any other Third Party Subscriber.

No issuance of Promissory Certificates shall be made to any Third Party Subscriber, unless that person first enters into a Deed of Adherence and a Secured Party Accession Undertaking.

The Registrar shall not register a Third Party Subscriber as the Holder of any Promissory Certificates unless such Third Party Subscriber has executed a Deed of Adherence and a Secured Party Accession Undertaking.

Where a Third Party Subscriber has executed a Deed of Adherence and a Secured Party Accession Undertaking pursuant to Clause 3.5(f) (Undertaking to Subscribe – Additional Subscriptions) above and such Deed of Adherence and Secured Party Accession Undertaking have each been countersigned by the Registrar and the Collateral Agent (respectively), such Third Party Subscriber shall become a Party to this Agreement and the Collateral Agent Appointment Deed and be entitled to the benefit of (and subject to the obligations of) the continuing provisions of this Agreement and the Collateral Agent Appointment Deed and shall be classified as a Holder from such date.

Holders’ rights and obligations

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

The rights of each Holder under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Holder from an Obligor is a separate and independent debt in respect of which a Holder shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Holder include any debt owing to that Holder under the Finance Documents and, for the avoidance of doubt, the outstanding principal amount of any Promissory Certificate held by a Holder or any other amount owed by an Obligor which relates to that Promissory Certificate or that Holder’s role under a Finance Document is a debt owing to that Holder by that Obligor.

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

SECURITY

Security and guarantees

Subject to the Original Subscribers complying with their obligations to subscribe for Tranche A-1 Promissory Certificates pursuant to Clause 3.2 (Undertaking to Subscribe – Original Subscribers), and upon such conditions being satisfied, the Company’s obligations in respect of the Promissory Certificates shall be secured by the Transaction Security and guaranteed by the Guarantor in accordance with Clause 16 (Guarantee and Indemnity).

Subject to becoming a Holder pursuant to Clause 22 (Changes to the Holders) or Clause 3.3(e) (Undertaking to Subscribe—Additional Subscriptions) of this Agreement, and upon such conditions contained therein being satisfied, the Company’s obligations in respect of the Promissory Certificates held by such Holder shall be secured by the Transaction Security and guaranteed by the Guarantor in accordance with Clause 16 (Guarantee and Indemnity).

CLOSING

Initial Closing

The Initial Closing shall occur at such time as agreed between the Parties on the Initial Closing Date.

Each Original Subscriber shall, subject to the terms of the Finance Documents, make its subscription payment for the relevant Class of Promissory Certificates to be subscribed for by it to the Company (or as directed by the Company) no later than noon on the Initial Closing Date.

At the Initial Closing, the Company will deliver to each Original Subscriber, the Promissory Certificates (in respect of the relevant Class of Promissory Certificates) to be subscribed for by it in the form of a single Promissory Certificate Voucher dated the Initial Closing Date and registered in the Register in the Original Subscriber’s name, against payment by it to the Company of its order of the principal amount specified opposite the Original Subscriber’s name in Part I of Schedule 1 (The Original Parties).

If, at the Initial Closing:

the Company fails to issue a Promissory Certificate to an Original Subscriber in accordance with this Clause 5 (Closing); or

any of the conditions precedent specified in Clause 5.3 (Conditions Precedent to Initial Closing) have not been fulfilled to the Original Subscriber’s satisfaction, or waived by the Original Subscriber,

An election by the Original Subscriber under paragraph (d) above shall not operate as a waiver of any rights which the Original Subscriber may have by reason of such failure or such non-fulfilment.

Subsequent Closings

Each Closing after the Initial Closing shall occur at such time as agreed between the relevant parties to such subsequent closing on the relevant Closing Date.

Each Subscriber shall, subject to the terms of the Finance Documents, make its subscription payment for the relevant Class of Promissory Certificates to be subscribed for by it to the Company (or as directed by the Company) no later than noon on the Closing Date.

At the relevant Closing, the Company will deliver to each relevant Subscriber the Promissory Certificates (in respect of the relevant Class of Promissory Certificates) to be subscribed for by such Subscriber in the form of a single Promissory Certificate Voucher dated the relevant Closing Date and registered in the Register in such Subscriber’s name, against payment by such Subscriber to the Company of the principal amount specified in Part II of Schedule 1.

If, at the relevant Closing:

the Company fails to issue a Promissory Certificate to any Subscriber in accordance with this Clause 5 (Closing); or

any of the conditions precedent specified in Clause 5.4 (Conditions precedent to subsequent Closings) have not been fulfilled to each relevant Subscriber’s satisfaction, or waived by each applicable Subscriber,

An election by a Subscriber under paragraph (d) above shall not operate as a waiver of any rights which such Subscriber may have by reason of such failure or such non-fulfilment.

Conditions precedent to the Initial Closing

An Original Subscriber will only be obliged to subscribe for the Promissory Certificates to be issued on the Initial Closing Date if:

prior to or at the Initial Closing, the Original Subscriber has received all of the documents and other evidence listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory to it (or has waived the requirement to receive any such documents or other evidence);

on the Initial Closing Date, no Default is continuing or would result from the issue of the Promissory Certificates; and

on the Initial Closing Date, the representations to be made by each Obligor pursuant to Clause 17 (Representations) are true in all material respects.

Each Original Subscriber shall notify the Company promptly upon receipt of all of the documents and other evidence listed in Schedule 2 (Conditions Precedent) in form and substance satisfactory to it.

Conditions precedent to subsequent Closings

A relevant Subscriber will only be obliged to subscribe for any Additional Tranches of Promissory Certificates in respect of any Closing after the Initial Closing if:

on the relevant Closing Date, no Default is continuing or would result from the issue of the Promissory Certificates;

on the relevant Closing Date, the representations to be made by each Obligor pursuant to Clause 17 (Representations) are true in all material respects;

the relevant Subscriber (if not already a Holder) has acceded to this Agreement and the Collateral Agent Appointment Deed as a Holder in accordance with Clause 3.5 (Undertaking to Subscribe –Additional Subscriptions); and

Part II of Schedule 1 has been duly updated by the Registrar with details of the Promissory Certificates to be subscribed for by the relevant Subscriber on the relevant Closing Date in accordance with this Agreement.

REGISTER AND TITLE

Appointment of Registrar

Registration of Promissory Certificates

The Registrar, or such other third party registrar as appointed by the Company and the Holders, shall maintain, at its registered office, a Register in respect of the Promissory Certificates in accordance with the regulations in Schedule 10 (Regulations Concerning Transfers and Registration of the Promissory Certificates).

A Promissory Certificate Voucher will be issued to each Holder in respect of its registered holding.

Each Promissory Certificate Voucher will be numbered serially with an identifying number which will be recorded in the Register by the Registrar.

When subscribing for or acquiring a Promissory Certificate, a Holder shall advise the Company and the Registrar if it is part of an Affiliated Holder Group and the Company shall record the details of any affiliation and the relevant Voting Representative (if applicable) in the Register.

The Registrar shall ensure that the Register and any entire counterpart thereof is kept and maintained at all times outside of the United Kingdom.

Title

Registration and delivery of Promissory Certificates

Regulations concerning transfers and registration

Replacement of Promissory Certificates

in the case of loss, theft or destruction, of an indemnity reasonably satisfactory to it; or

in the case of mutilation, upon surrender and cancellation of such Promissory Certificate,

Resignation of the Registrar

The Registrar may resign and appoint one of its Affiliates as successor by giving prior written notice to the Holders and the Company.

Alternatively, the Registrar may resign by giving 30 days’ written notice to the Holders and the Company, in which case the Majority Holders may (following consultation with the Company) appoint a successor Registrar (“Successor Registrar”).

If the Majority Holders have not appointed a Successor Registrar in accordance with paragraph (b) above within 20 days after the notice of resignation was given, the retiring Registrar (after consultation with the Company) may appoint a Successor Registrar or may petition any court of competent jurisdiction for the appointment of a successor.

The retiring Registrar shall make available to the Successor Registrar such documents and records and provide such assistance as the Successor Registrar may reasonably request for the purposes of performing its functions as Registrar under the Finance Documents. The Company shall, within five Business Days of demand, reimburse the retiring Registrar for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.

The Registrar’s resignation notice shall only take effect upon:

the appointment of a Successor Registrar; and

the transfer of all the records regarding the Promissory Certificates to such Successor Registrar.

Upon the appointment of a Successor Registrar, the retiring Registrar shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (d) above) but shall remain entitled to the benefit of this Clause 6.7 (Resignation of the Registrar) and any other provision which by its terms survives the resignation or removal of the Registrar (and any Registrar fees for the account of the retiring Registrar shall cease to accrue from (and shall be payable on) that date). Any Successor Registrar and each of the other parties shall have the same rights and obligations amongst themselves as they would have had if that successor had been an original party.

The Majority Holders may, by notice to the Registrar, require it to resign in accordance with paragraph (b) above. In this event, the Registrar shall resign in accordance with paragraph (b) above.

Registrar Indemnity

The Company shall indemnify the Registrar and its officers, directors, employees, representatives and agents (the “Indemnified Persons”) against any loss, liability, cost, claim, action, damages, demand or expense (including, but not limited to, all reasonable costs, charges, properly and reasonably incurred legal or other fees and expenses paid or incurred in disputing or defending any of the foregoing) which any Indemnified Person may incur or which may be made against an Indemnified Person arising out of or in connection with its appointment or exercise of its functions under this Agreement, except as may result from such Indemnified Person’s fraud, willful misconduct or gross negligence as determined by a final non appealable judgement issued by a court of competent jurisdiction.

The Company shall, within ten Business Days of demand, pay the Registrar the amount of all costs and expenses (including legal fees) reasonably incurred by the Registrar in connection with the negotiation, preparation, execution, administration, performance, amendment or enforcement of this Agreement and the other Finance Documents.

The provisions of this Clause 6.8 (Registrar Indemnity) shall survive the termination of this Agreement, the payment of the Secured Obligations and the resignation or removal of the Registrar.

Registrar Limitation of Liability

Notwithstanding anything herein contained, the Registrar shall not be liable to any person for any matter or thing done or omitted in any way in connection with this Agreement and the Promissory Certificates, save in relation to its own fraud, gross negligence or wilful misconduct as determined by a final non appealable judgement issued by a court of competent jurisdiction.

The privileges and protections of the Collateral Agent, as set forth in the Collateral Agent Appointment Deed, shall apply to the Registrar in this Agreement, mutatis mutandis, as if the same were fully and specifically set forth herein with respect to the Registrar.

In no event shall the Registrar be responsible or liable for monitoring or confirming whether any New Holder is an Eligible Purchaser or a Restricted Purchaser.

REDEMPTION

Scheduled redemption

Redemption at the option of Holders due to Illegality

that Holder shall promptly notify the Company, in writing, upon becoming aware of that event, with reasonable details regarding the nature of such illegality; and

to the extent that the Holder’s Promissory Certificates have not been transferred pursuant to this Agreement (such transfer to be treated as if it were a transfer in accordance with Clause 22.1(d) (Transfer of Promissory Certificates) and as if an Event of Default had occurred that is continuing), the Company shall redeem the Promissory Certificates held by that Holder on the Payment Date occurring after the Holder has notified the Company or, if earlier, the date specified by the Holder in the notice delivered to the Company (being no earlier than the last day of any applicable grace period permitted by law) at a price equal to:

for the period between the Initial Closing Date and on or before the fourth anniversary of the Initial Closing Date, 100 per cent of the principal amount of the Holder’s Promissory Certificates, together with interest accrued to such date; or

for any redemption due after the fourth anniversary, the fair market value of the Holder’s Promissory Certificates,

For the purposes of Clause 7.2(b)(ii) (Redemption at the option of Holders due to Illegality), the fair market value of the Holder’s Promissory Certificates shall be calculated as follows:

the Company shall obtain an independent valuation of the fair market value of the Holder’s Promissory Certificates from Duff & Phelps (or such successor entity thereto) (the “Calculation Agent”) whose fees and expenses, if any, shall be shared equally between the Company and the relevant Holder;

in the event that the Calculation Agent is unable to undertake such valuation, the Holder and the Company shall jointly select (acting promptly and reasonably) another independent valuation firm (the “Substitute Calculation Agent”) to undertake the valuation of the fair market value of the Holder’s Promissory Certificates. The Substitute Calculation Agent’s fees and expenses, if any, shall be shared equally between the Company and the relevant Holder; or

if the Holder and the Company are unable to agree on a Substitute Calculation Agent, the Company and the Holder shall each elect an independent valuation firm, each of whom shall prepare a valuation, with the average of such valuations being binding on the Company and the Holder. The fees and expenses, if any, of each independent valuation firm shall be paid by the relevant party appointing such independent valuation firm.

Redemption following Change of Control or IPO

If a Change of Control or IPO occurs, the Company shall promptly notify the Holders in writing.

The Company shall within ten Business Days of a Change of Control having occurred other than pursuant to a Permitted Equity Sale or Permitted Asset Sale, redeem each Promissory Certificate held by such Holder at a price equal to 100 per cent. of its principal amount together with interest accrued to such date and any Prepayment Fee,

Redemption following Permitted Asset Sale

Redemption at the option of the Company

The Company may redeem the Promissory Certificates (in any Class), in whole or in part only (each, a “Call Settlement Date”) at a price equal to 100 per cent. of their principal amount together with any Prepayment Fee and accrued and unpaid interest to such date by giving not less than 10 Business Days’ notice to the Holders.

Each such notice shall specify the date, the amount of such prepayment and the Class(es), Tranche(s) (if applicable) of Promissory Certificates to be repaid. Each prepayment of a Promissory Certificate shall be applied pro-rata in respect of the relevant Class being prepaid.

Notwithstanding the forgoing, if the purpose of redemption made pursuant to this Clause 7.5 (Redemption at the option of the Company) is payment of the Principal Payment Amount the Company shall only be required to give the Holders not less than three Business Days’ notice of any such payment and redemption.

Partial redemption

If any Promissory Certificates (in any Class) are redeemed in part in accordance with Clause 7.4 (Redemption at the option of the Company), each relevant Promissory Certificate (in respect of the relevant Class) shall be redeemed in part in the proportion which the aggregate principal amount of the outstanding Promissory Certificates (in respect of the relevant Class) to be redeemed on the relevant Call Settlement Date bears to the aggregate principal amount of outstanding Promissory Certificates (in respect of the relevant Class) on such date together with interest accrued to such date and any Prepayment Fee.

Notwithstanding the forgoing, if the purpose of redemption made pursuant to this Clause 7.6 (Partial redemption) is payment of the Principal Payment Amount, no Prepayment Fee shall be due or payable in relation to the first five such redemptions made by or on the instruction of the Company from the Initial Closing Date. Any redemption made after the fifth redemption made in respect of the Principal Payment Amount shall attract a Prepayment Fee.

On a partial redemption of any Promissory Certificates (in any Class), the Registrar will note on the Register a memorandum of the amount and date of any redemption in part in respect of each relevant Promissory Certificate (in respect of the relevant Class).

Redemption due to indemnification claims

If any Holder claims indemnification from the Company under Clause 11.3 (Tax indemnity) or Clause 12.1 (Increased Costs), the Company may, whilst the circumstances giving rise to the requirement for that indemnification continues, give that Holder notice of redemption of the Promissory Certificates held by such Holder.

On the Payment Date occurring after the Company has given notice of redemption under paragraph (a) above, the Company shall redeem the Promissory Certificates held by that Holder at a price equal to 100 per cent. of their principal amount together with interest accrued to such date. Any such redemption shall not be subject to any Prepayment Fee.

Company Ordinary Quarterly Debt Service

Interest for any Class of Promissory Certificates due and payable in respect of such Payment Date, with such amounts to be applied to the Promissory Certificates of each Holder of record on such Payment Date in the relevant Class on a pro rata and pari passu basis; and

an amount equal to any fees, expenses, indemnities or other amounts due but unpaid under the Finance Documents; and

an amount equal to such amount as may be required to be credited to the Debt Service Reserve Account to maintain the Minimum Required Balance in accordance with Clause 20.11 (Debt Service Reserve Account); and

if applicable, principal repayments, if any (including but not limited to a payment of the Principal Payment Amount), with such amounts to be applied in redemption of the Promissory Certificates of each Holder of record on such Payment Date in the relevant Class on a pro rata and pari passu basis in accordance with Clause 7.5 (Redemption at the option of the Company).

No other redemption

Redemption amount

Application of Redemption Amounts

CANCELLATION

INTEREST

Calculation of interest

Interest accrual

Subject to Clause 27.3 (Business Days), the Company shall pay accrued Interest on the Promissory Certificates on the Outstanding Balance in cash on each Payment Date.

Each Promissory Certificate will cease to bear interest from the due date for redemption unless, upon due presentation, payment of principal is improperly withheld or refused or otherwise not made in full, in which case it will continue to bear interest in accordance with this Clause 9.2 (Interest accrual) (both before and after judgment) until the day on which all sums due in respect of such Promissory Certificate up to that day are received by or on behalf of the relevant Holder.

Default Interest

If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on each Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which is 1 per cent. per annum higher than the rate of interest then applicable to the Promissory Certificates. Any interest accruing under this Clause 9.3 (Default Interest) to a Holder shall be immediately payable by the relevant Obligor on demand by the relevant Holder.

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.

Notification of rates of interest

A notice shall be provided to the Registrar and the Holders by or on behalf of the Company setting out the determination of a rate of interest under this Agreement (such rate of interest as set forth in Schedule 1 (The Original Parties)) 5 Business Days prior to the relevant Payment Date and which notice will set out the interest due to be paid for the relevant Interest Period and the applicable Payment Date.

The Registrar shall be responsible for and shall keep the contents of Schedule 1 (The Original Parties) updated and will provide a copy of the updated Schedule 1 (The Original Parties) to the Holders on each Quarter Date.

INTEREST PERIODS

TAX GROSS UP AND INDEMNITIES

Definitions

In this Agreement:

Unless a contrary indication appears, in this Clause 11 (Tax Gross Up And Indemnities) a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.

Tax gross-up

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

If a Tax Deduction is required by law to be made by an Obligor or applicable withholding agent under any Finance Document and the Tax is an Indemnified Tax, the amount of the payment due from the relevant 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 of an Indemnified Tax had been required.

If an Obligor or applicable withholding agent is required to make a Tax Deduction, that Obligor or applicable withholding agent 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.

As soon as practicable after making a Tax Deduction or any payment required in connection with that Tax Deduction, the Company (or applicable withholding agent) shall deliver to the Holder entitled to the payment evidence reasonably satisfactory to that Holder that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

Any Holder that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Finance Document shall deliver to the Company, at the time or times reasonably requested by the Company, such properly completed and executed documentation reasonably requested by the Company as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Holder, if reasonably requested by the Company, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company as will enable the Company to determine whether or not such Holder is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (e)(ii)(A), (ii)(B) and (ii)(D) of this Clause) shall not be required if in the Holder’s reasonable judgment such completion, execution or submission would subject such Holder to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Holder.

Without limiting the generality of the foregoing,

any Holder that is a U.S. person as defined in Section 7701(a)(30) of the Code (a “U.S. Person”) shall deliver to the Company on or about the date on which such Holder becomes a Holder under this Agreement (and from time to time thereafter upon the reasonable request of the Company), copies of an executed IRS Form W-9 certifying that such Holder is exempt from U.S. federal backup withholding tax;

any Holder that is not a U.S. Person (a “Foreign Lender”) shall, to the extent it is legally entitled to do so, deliver to the Company (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Holder under this Agreement (and from time to time thereafter upon the reasonable request of the Company), whichever of the following is applicable:

in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Finance Document, copies of an executed IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Finance Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

copies of an executed IRS Form W-8ECI;

in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Company as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) copies of an executed IRS Form W-8BEN or IRS Form W-8BEN-E; or

to the extent a Foreign Lender is not the beneficial owner, copies of an executed IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate, IRS

any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Holder under this Agreement (and from time to time thereafter upon the reasonable request of the Company), copies of an executed version of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Company to determine the withholding or deduction required to be made; and

each Holder shall deliver to the Company at the time or times prescribed by law and at such time or times reasonably requested by the Company such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company as may be necessary for the Company to comply with their obligations under FATCA and to determine that such Holder has complied with such Holder’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this Clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Tax indemnity

The Company shall (within ten Business Days of written demand by a Holder) pay to that Holder an amount equal to any Indemnified Taxes (including any Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Clause 11.3(a) (Tax indemnity)) payable or paid by such Holder or required to be withheld or deducted from a payment to such Holder and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant governmental authority.

A Holder making, or intending to make a claim under paragraph (a) above shall promptly notify the Company of the event which will give, or has given, rise to the claim. A certificate as to the amount of such payment or liability delivered to the Company by a Holder shall be conclusive absent manifest error.

A Holder shall, on receiving a payment from the Company under this Clause 11.3 (Tax indemnity), notify the other Holders.

Treatment of Certain Refunds

Stamp taxes

INCREASED COSTS

Increased Costs

Subject to Clause 12.3 (Exceptions) the Company shall, within five Business Days of a demand by a Holder, pay for the account of that Holder the amount of any Increased Costs incurred by that Holder 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.

In this Agreement “Increased Costs” means:

a reduction in the rate of return from the Promissory Certificates or on a Holder’s (or its Affiliate’s) overall capital;

an additional or increased cost; or

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

Increased cost claims

A Holder intending to make a claim pursuant to Clause 12.1 (Increased Costs) shall notify the Company of the event giving rise to the claim.

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

Exceptions

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

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

an Indemnified Tax or Taxes described in limbs (b) through to (d) of the definition of Excluded Tax;

an Other Connection Tax that is imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profit Taxes; or

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

In this Clause 12.3 (Exceptions), a reference to a “Tax Deduction” has the same meaning given to that term in Clause 11.1 (Definitions).

OTHER INDEMNITIES

Currency indemnity

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

making or filing a claim or proof against that Obligor;

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

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

Other indemnities

the occurrence of any Event of Default;

a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 25 (Sharing among the Holders);

funding, or making arrangements to fund, its subscription for the Promissory Certificates 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 Holder alone); or

the Promissory Certificates (or part of the Promissory Certificates) not being redeemed in accordance with a notice of redemption given by or on behalf of the Company.

Indemnity to the Subscribers and the Holders

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

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

Exclusions

MITIGATION BY THE HOLDERS

Mitigation

Each Holder 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 Clause 7.2 (Redemption at the option of Holders due to Illegality), Clause 11 (Tax Gross Up and Indemnities) or Clause 12 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Promissory Certificates and Finance Documents to another Affiliate or Specified Office.

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

Limitation of liability

The Company shall, within 10 Business Days of demand, indemnify each Holder for all costs and expenses reasonably incurred by that Holder as a result of steps taken by it under Clause 14.1 (Mitigation).

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

COSTS AND EXPENSES

Transaction expenses

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

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

Amendment costs

an Obligor requests an amendment, waiver or consent; or

an amendment is required pursuant to Clause 27.5 (Change of currency),

Enforcement costs

GUARANTEE AND INDEMNITY

Guarantee and indemnity

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

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

agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Holder immediately on demand against any cost, loss or liability it incurs as a result of the Company 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 the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 16 (Guarantee and indemnity) if the amount claimed had been recoverable on the basis of a guarantee.

Continuing guarantee

Reinstatement

Waiver of defences

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

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

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

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

any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of the maturity of the Promissory Certificates or any increase in the principal amount of the Promissory Certificates or other document or security;

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

any insolvency or similar proceedings.

Guarantor Intent

Immediate recourse

Appropriations

refrain from applying or enforcing any other moneys, security or rights held or received by that Holder (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 the Guarantor shall be entitled to the benefit of the same; and

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

Deferral of Guarantors’ rights

to be indemnified by the Company;

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

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

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

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

to claim or prove as a creditor of the Company in competition with any Holder.

Additional security

REPRESENTATIONS

Status

It is a limited liability company, duly formed and validly existing under the law of its jurisdiction of formation.

It and each Security Provider has the power to own its assets and carry on its business as it is being conducted and is duly qualified under the laws of each jurisdiction where the conduct of its business requires or the performance of its obligations under the Promissory Certificates requires.

Binding obligations

Non-conflict with other obligations

any law or regulation applicable to either Obligor or any Security Provider;

the Constitutional Documents of either Obligor or any Security Provider or those of any other member of the Group; or

any material agreement or material instrument binding upon either Obligor or any other member of the Group or any Security Provider or any of the Obligors’ or any other member of the Group’s or any Security Provider’s assets or constitute a default or termination event (however described) under any such agreement or instrument.

Power and authority

Validity and admissibility in evidence

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

to make the Finance Documents to which it is a party admissible in evidence in its Relevant Jurisdictions,

Governing law and enforcement

The choice of governing law of the Finance Documents will be recognised and enforced in its Relevant Jurisdictions.

Any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its Relevant Jurisdictions.

Insolvency

No corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 21.6 (Insolvency proceedings) has been taken or, to the knowledge of an Obligor, threatened in relation to an Obligor or a Security Provider; and none of the circumstances described in Clause 21.5 (Insolvency) applies to an Obligor or a Security Provider.

Each of the Company and the Guarantor, on a consolidated basis with the members of the Group, is Solvent.

No filing or stamp taxes

No default

No Event of Default and, on the date of this Agreement and each Closing Date, no Default, is continuing or is reasonably likely to result from the issue of the Promissory Certificates or the entry into, the performance of, or any transaction contemplated by any Finance Document.

No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the forgoing, would constitute) a default under any other agreement or instrument which is binding on either Obligor or any Security Provider or to which either Obligor’s or any Security Provider’s assets are subject which has a Material Adverse Effect.

Financial statements

Its Original Financial Statements were prepared in accordance with the Accounting Principles consistently applied unless expressly disclosed to the Original Subscribers in writing to the contrary before the date of this Agreement.

Its Original Financial Statements give a true and fair view of its financial condition and results of operations during the relevant Financial Year and its results of operations during the relevant Financial Year (consolidated) unless expressly disclosed to the Original Subscribers in writing to the contrary before the date of this Agreement.

Its most recent financial statements delivered pursuant to Clause 18 (Information Undertakings) have been prepared in accordance with the Accounting Principles consistently applied (and as applied to the Original Financial Statements) and give a true and fair view of (if audited) or fairly represent (if unaudited) its consolidated financial condition as at the end of, and consolidated results of operations for, the Collection Period to which they relate.

The most recent Company In-Place Quarterly Rent Tape delivered as a condition precedent to the Initial Closing Date or attached to the most recent Compliance Certificate is true, complete and accurate in all material respects and was reviewed and approved by a senior officer of the Guarantor and no event or circumstance has arisen and no information has been intentionally omitted from the Company In-Place Quarterly Rent Tape and no information has been given or withheld that results in the information contained in the Company In-Place Quarterly Rent Tape being untrue and misleading in any material way, and the information in the Company In-Place Quarterly Rent Tape accurately represents the Annualised In-Place Rents and the Monthly Recurring Revenue (in each case, calculated in all respects in a manner consistent with this Agreement and, in the case of each Company In-Place Quarterly Rent Tape attached to a Compliance Certificate, consistent in all respects with the basis on which the Company In-Place Quarterly Rent Tape provided as a condition precedent to the Initial Closing Date was prepared) for the relevant month with respect to the underlying Property Assets and Contracts to which such Monthly Recurring Revenue and Annualised In-Place Rents shown in the Company In-Place Quarterly Rent Tape relate.

No misleading information

any factual information prepared by the Company or the Guarantor contained in the Data Room (taken as a whole) was true, complete and accurate in all material respects as at the date of the relevant report or document containing the information or (as the case may be) as at the date the information is expressed to be given, provided that no such representation is made with respect to projections or forecasts and similar information;

any financial projection or forecast contained in the Data Room has been prepared on the basis of recent historical information and on the basis of assumptions the Company believes were reasonable (as at the date of the relevant report or document containing the projection or forecast) and arrived at after reasonable consideration;

all material information provided to a Finance Party or its advisers by or on behalf of the Company in connection with the Group on or before the date of this Agreement and not superseded before that date by other information so provided to that Finance Party or its advisers, as the case may be (taken as a whole), is true, complete and accurate in all material respects as at the date it was provided (or, if such information is dated as of an earlier date, then as of such earlier date) and is not misleading in any material respect and (as at the date such information is expressed to be given) were prepared in good faith based on assumptions that the Guarantor believed were reasonable;

all written information provided by any Obligor or any Security Provider (including, to the best of their knowledge and belief, their advisers) to a Finance Party was true, complete and accurate in all material respects as at the date it was provided (or, if such information is dated or expressed to be made as of an earlier date, then as of such earlier date) and is not misleading in any respect, provided that no such representation is made with respect to projections or forecasts and similar information except as expressly set out in paragraph (b) above;

Asset Tape, and Company In-Place Quarterly Rent Tape

The information in the Asset Tape and in the Company In-Place Quarterly Rent Tape most recently delivered under this Agreement is true, complete and accurate in all material respects as at the relevant date to which the Asset Tape and such Company In-Place Quarterly Rent Tape, as the case may be, were prepared and have been reviewed and approved by a senior officer of the Company.

No event or circumstance has arisen and no information has been intentionally omitted from the Asset Tape or Company In-Place Quarterly Rent Tape and no information has been given or withheld that results in the information contained in the Asset Tape or Company In- Place Quarterly Rent Tape being untrue or misleading in any material way.

The information in the Asset Tape or Company In-Place Quarterly Rent Tape (as applicable) accurately represents the Annualised In-Place Rents and the Monthly Recurring Revenue (in each case, calculated in all respects in a manner consistent with this Agreement and, in the case of each Company In-Place Quarterly Rent Tape, consistent in all respects with the basis on which the Asset Tape was prepared) for the relevant month with respect to the underlying Property Assets and Contracts to which such Monthly Recurring Revenue and Annualised In-Place Rents shown in the Asset Tape or Company In-Place Quarterly Rent Tape relate.

Taxation

Neither it nor any Security Provider is materially overdue in the filing of any material Tax returns and neither it, nor any Security Provider is overdue in the payment of any material amount in respect of Tax.

To the knowledge of the Obligors, no claims or investigations are being made or conducted against it with respect to material Taxes.

Ranking

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.

The Transaction Security has or will create the Security which it is expressed to create and shall have the ranking in priority which it is expressed to have in the Transaction Security Documents and is not subject to any prior ranking or pari passu ranking Security.

No proceedings

No litigation, arbitration or administrative proceedings or investigations of or before any court, arbitral body or agency which, if adversely determined, will have a Material Adverse Effect has or have (to the best of its knowledge and belief) been started or threatened against it or any of its Subsidiaries, which has not been disclosed to the Original Subscribers in writing to the contrary before the date of this Agreement.

No judgment or order of a court, arbitral body or agency which will have a Material Adverse Effect has (to the best of its knowledge and belief) been made against it or any of its Subsidiaries, which has not been disclosed to the Original Subscribers in writing to the contrary before the date of this Agreement.

Security and Financial Indebtedness

No Security or Quasi-Security exists over all or any of the present or future assets of an Obligor other than as permitted by this Agreement.

The Company has no Financial Indebtedness outstanding other than as permitted by this Agreement.

Holding Companies

Membership Interests

Group Structure Chart

For the purposes of the representations given on the date of this Agreement, the date of the Initial Closing Date, the Group Structure Chart is true, complete and accurate in all material respects as at the date of this Agreement and as at the Initial Closing Date.

For the purposes of the Repeating Representations, the Group Structure Chart is true, complete and accurate in all material respects in relation to the members of the Group.

Accounting Reference Date

Ownership of assets

Legal and beneficial ownership

No breach of laws

Environmental laws

Each Obligor and Security Provider is in compliance with Clause 20.4 (Environmental compliance) and to the best of its knowledge and belief no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or is reasonably likely to have a Material Adverse Effect.

No Environmental Claim is pending or (to the best of its knowledge and belief) is threatened in writing against any Obligor or Security Provider where that claim has or is reasonably likely, if determined against that Obligor or Security Provider, to have a Material Adverse Effect.

Private Offering by the Company

Neither the Company nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or subscription of the Promissory Certificates to the registration requirements of the Securities Act or to the registration, filing or qualification requirements of any securities or blue sky laws of any applicable jurisdiction.

Neither the Company nor anyone acting on its behalf has taken, or will take, any action that would require the Company to publish a prospectus within the meaning of the Prospectus Regulation in respect of the issuance or sale of the Promissory Certificates.

Insurance

Access

If an Event of Default is continuing each Obligor shall, and the Company shall ensure that each member of the Group will, (not more than twice in every Financial Year) permit accountants or other professional advisers and contractors appointed by the Majority Holders access at all reasonable times and on reasonable notice at the cost of that Obligor to:

the premises, assets, books, accounts and records of each Obligor and such member of the Group that relate to Property Assets; and

meet and discuss matters with management of the Obligors and the Group,

Pensions and ERISA

All Plans are funded and operated in compliance with all legal and contractual obligations.

No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan which would reasonably be expected to have a Material Adverse Effect.

Except as would not reasonably be expected to have a Material Adverse Effect:

as of the last annual actuarial valuation date prior to the Closing Date, no Plan was in at-risk status (as defined in Section 430(i)(4) of the Internal Revenue Code); and

since such annual actuarial valuation date, there has been no material adverse change in the funding status of any Plan that would reasonably be expected to cause such Plan to be in at-risk status (as defined in Section 430(i)(4) of the Internal Revenue Code).

Each Plan intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be so qualified, and nothing has occurred since the date of such determination that would adversely affect such determination.

There is no litigation, arbitration, administrative proceeding or claim pending or threatened against or with respect to any Plan (other than routine claims for benefits) which has or, if adversely determined, would reasonably be expected to have, either singly or in the aggregate, a Material Adverse Effect.

Except as would not reasonably be expected to have a Material Adverse Effect:

no Obligor nor any ERISA Affiliate:

is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan or has incurred any such Withdrawal Liability that has not been satisfied in full; or

has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is, insolvent (within the meaning of Section 4245 of ERISA) or has been determined to be in “endangered” or “critical” status (within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA); and

no Multiemployer Plan is reasonably expected to be, insolvent or in “endangered” or “critical” status.

Sanctions

No Obligor or any of its respective Subsidiaries, any of its or their respective directors or officers or, to the Obligors’ best knowledge (after due and careful inquiry), any of such Obligor’s, its Subsidiaries’ employees, affiliates, agents or representatives:

is a Restricted Party;

has been engaged in any transaction, activity or conduct that could reasonably be expected to result in its being designated as a Restricted Party;

is currently engaging in any transaction, activity or conduct that could result in a violation of applicable Sanctions;

has received notice of, or is otherwise aware of, any claim, action, suit, proceedings or investigation involving it with respect to Sanctions; and/or

is acting on behalf of or at the direction of any Restricted Party in connection with the Promissory Certificates.

The issuance of the Promissory Certificates will not result in a violation of any Sanctions.

Anti-corruption law

Investment Company Act

No Obligor and no member of the Group is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (each as defined in the Investment Company Act of 1940, as amended).

Neither the issuance of the Promissory Certificates nor the application of the proceeds or redemption thereof by the Company, nor the consummation of the other transactions contemplated hereby, will violate any provision of such act or any rule, regulation or order of the Securities and Exchange Commission thereunder.

Margin Stock

No Obligor is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock.

No part of the proceeds of an issuance of Promissory Certificates will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a violation of the provisions of Regulation T, U or X.

The Transaction Security Documents do not violate Regulation T, U or X.

Times when representations made

All the representations and warranties in this Clause 17 (Representations) are made by each Obligor (where applicable) on the date of this Agreement and on each Closing Date, except that:

the representations and warranties set out in Clause 17.11 (No misleading information) which are deemed to be made by each Obligor (where applicable) with respect to the Data Room on the date of this Agreement; and

the representations and warranties set out in Clause 17.12 (Asset Tape, Company In-Place Quarterly Rent Tape, Ownership Documents and Contracts) and 17.20 (Ownership of assets) are deemed to be made by each Obligor on the date of this Agreement, on each Closing Date, and on the date that the Asset Tape and each Company In-Place Quarterly Rent Tape is delivered in accordance with this Agreement.

The Repeating Representations are deemed to be made by each Obligor (as applicable) on each Closing Date and on each Payment Date.

Each representation or warranty deemed to be made after the date of this Agreement shall be deemed to be made by reference to the facts and circumstances existing at the date the representation or warranty is deemed to be made. Each representation or warranty relating to information to be delivered or provided by any Obligor on any day shall be deemed to be expressed as of the date on which such information was delivered or provided, or if such information is expressed as of an earlier date, then such earlier date.

INFORMATION UNDERTAKINGS

Financial statements

as soon as the same become available, but in any event within 150 days after the end of each of its Financial Years:

the audited financial statements (consolidated if applicable) of the Guarantor and each of its subsidiaries for that Financial Year; and

the consolidated financial statements of the Company and each of its subsidiaries for that Financial Year,

by no later than the first Payment Date falling after the end of each Quarterly Period, the Company’s unaudited consolidated financial statements for the relevant Quarterly Period (the “Quarterly Financial Statements”).

Compliance Certificate

The Company shall supply to each Holder a Compliance Certificate with each set of Annual Financial Statements and Quarterly Financial Statements provided by the Company to the Holders.

The Compliance Certificate shall, amongst other things

set out (in reasonable detail):

computations as to compliance with Clause 19 (Financial covenants);

amounts and dates of any Permitted Distributions made by the Company;

the amount of Restricted Cash spent in that Collection Period;

the amount standing to the credit of the Debt Service Reserve Account as at the relevant Collection Period End Date;

calculations for the foreign currency adjustments;

confirmation of Cash Funded Equity as of the relevant Collection Period End Date; and

attach the most recent Company In-Place Quarterly Rent Tape.

Each Compliance Certificate shall be signed by one of the senior officers of the Company.

Requirements as to financial statements

include a balance sheet, profit and loss account and cashflow statement, and, in the case of the Annual Financial Statements referred to by Clause 18.1(a)(i) (Financial statements), be audited;

be certified by a senior officer of the Guarantor as giving a true and fair view of (in the case of Annual Financial Statements), or fairly representing (in other cases), its consolidated financial condition and operations as at the date as at which those financial statements were drawn up;

be prepared using the Accounting Principles, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements unless, in relation to any set of financial statements, the Guarantor notifies the Holders that there has been a change in the Accounting Principles or the accounting practices and the Guarantor’s auditors (or, if appropriate, the auditors of the Obligor) deliver to the Holders:

a description of any change necessary for those financial statements to reflect the Accounting Principles or accounting practices upon which the Original Financial Statements were prepared; and

sufficient information, in form and substance as may be reasonably required by any Holder, to enable the Holders to determine whether Clause 19 (Financial Covenants) has been complied with and to make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.

Requirements as to Company In-Place Quarterly Rent Tape

Year-end

Information: miscellaneous

The Company shall supply or procure that the Guarantor will supply to each Holder:

as soon as reasonably practicable following dispatch, copies of all documents dispatched by a member of the Group to its third party creditors (outside of the Group) (or any class of them) in respect of Financial Indebtedness, other than other than Financial Indebtedness of the type described in clause (i) of the definition thereof;

as soon as reasonably practicable upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group or the Guarantor, and which might, if adversely determined, have a Material Adverse Effect;

as soon as reasonably practicable upon becoming aware of them, the details of any judgment or order of a court, arbitral body or agency which is made against any Obligor and have a Material Adverse Effect; and

details of any disposal, compulsory purchase or blight or disturbance, lease prepayment or insurance or recovery claim in each case which is material and with respect to a member of the Group;

promptly, such information as the Collateral Agent may reasonably require about the charged property and compliance of the Obligors and Security Providers with the terms of any Transaction Security Documents;

promptly upon receipt thereof, copies of any adverse notice or report regarding any Contract or Authorisation of any member of the Group that could reasonably be expected in the aggregate to have a Material Adverse Effect;

promptly on request, such further information regarding the financial condition, assets and operations of the Group and/or any member of the Group (including any requested amplification or explanation of any item in the Company In-Place Quarterly Rent Tape, financial statements, budgets or other material provided by any Obligor under this Agreement and any changes to the senior management of the Group) as any Holder may reasonably request.

Following public announcement of the Company’s policy, the Company and the Holders shall use their best efforts to agree to relevant reporting by the Company with respect to material environmental, social and governance items.

Notification of default

Each Obligor shall notify the Finance Parties 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).

Promptly upon a reasonable request by any Holder, the Company shall supply to the Holders a certificate signed by one of its 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).

“Know your customer” checks

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;

any change in the status of an Obligor or the composition of the shareholders of an Obligor after the date of this Agreement; or

a proposed assignment or transfer by a Holder of any of its rights and/or obligations under this Agreement to a party that is not a Holder prior to such assignment or transfer,

FINANCIAL COVENANTS

Financial condition

Interest Coverage: Interest Coverage as at any Collection Period End Date shall not be less than 1.30:1.

Leverage: Leverage as at any Collection Period End Date shall not exceed 9.5:1.

Company Equity: as at each Collection Period End Date, the Cash Funded Equity in the Company constitutes not less than $150,000,000 (being at least €125,000,000 at the Initial Closing Date). For the avoidance of doubt, not less than $150,000,000 shall have been funded into the Company as of the Initial Closing Date; and

Guarantor Equity: as at each Collection Period End Date, the Cash Funded Equity in the Guarantor constitutes not less than $200,000,000. For the avoidance of doubt, not less than $200,000,000 shall have been funded into the Guarantor as of the Initial Closing Date.

Financial testing

The financial covenants set out in Clause 19.1 (Financial condition) shall be calculated in accordance with the Accounting Principles (as applied to the Original Financial Statements) and tested by reference to the Company In-Place Quarterly Rent Tape and each Compliance Certificate delivered pursuant to Clause 18.2 (Compliance Certificate).

For the avoidance of doubt, the Guarantor’s compliance with each of the covenants in Clause 19.1 (Financial condition) with respect to a Collection Period End Date shall be determined as at the earlier of (such date, the “Relevant Date”) (i) the date on which the relevant financial statements and Compliance Certificate are delivered in accordance with this Agreement, with respect to that Collection Period and (ii) the due date for delivery of such relevant financial statements and Compliance Certificate in accordance with the terms of this Agreement (and for the avoidance of doubt no Default or Event of Default can arise in connection with a breach of Clause 19.1 (Financial condition) until the Relevant Date has occurred and, furthermore, in the case of the circumstances described in paragraph (b)(ii) where the relevant financial statements and Compliance Certificate have not been delivered by the last date on which they are due, notwithstanding anything to the contrary in this Agreement an immediate Event of Default shall occur and be continuing).

GENERAL UNDERTAKINGS

Authorisations

Each Obligor shall (and shall procure that each Security Provider shall) as soon as reasonably practicable:

obtain, comply with and do all that is necessary to maintain in full force and effect; and

supply certified copies to the Holders of,

Each Obligor shall (and shall procure that each Security Provider shall) promptly obtain, comply with and do all that is necessary to maintain in full force and effect its legal existence.

Taxation

Compliance with laws

Environmental compliance

Each Obligor shall (and the Company shall ensure that each Security Provider will):

comply with all Environmental Law; and

obtain, maintain and ensure compliance with all requisite Environmental Permits,

Environmental claims

any Environmental Claim against any Obligor or Security Provider which is current, pending or to the best of its knowledge and belief threatened in writing; and

any facts or circumstances of which it is aware (to the best of its knowledge and belief) which it believes (acting in good faith) are reasonably likely to result in any Environmental Claim being commenced or threatened against any Obligor or Security Provider,

Negative pledge

Ordinary Course Disposals

As long as no Default has occurred and is continuing prior to, or would occur immediately after as a result of, an ordinary-course asset disposal (a “Disposal”) taken as a whole as at the next Collection Period End Date, no restrictions shall apply to any Disposal.

Notwithstanding Clause 20.7(a) above, in respect of a single Disposal that is comprised of In-Place Rents that exceeds more than 20 per cent. of the Annualised In-Place Rents as of the last Collection Period End Date, the Company shall, within five Business Days after such Disposal, confirm to the Holders whether such Disposal would cause an Obligor to no longer be in compliance with its obligations under Clause 19.1 (Financial condition) as at the next Collection Period End Date (taking into account any additional Monthly Recurring Revenue since the last Compliance Certificate was delivered).

If as a result of a Disposal, an Obligor is no longer in compliance with its obligations under Clause 19.1 (Financial condition), the Obligors shall not be permitted to make any Distributions until such time as the non-compliance is no longer continuing.

Preservation of Assets

Pari passu ranking

Change of business

Debt Service Reserve Account

The Company hereby agrees that:

it will not withdraw any amounts credited to the Debt Service Reserve Account except for the purposes of:

funding the payment of Interest under this Agreement; or

the payment of any principal amount of Promissory Certificate(s) due to be repaid on the Redemption Date or the Maturity Date or following an Event of Default;

prior to making any withdrawal for the purposes set out in paragraph (i) above, the Company shall provide a certificate to the Holders confirming the amount of such withdrawal and reasonable details of the purpose of such withdrawal;

it will ensure that the balance standing to the credit of the Debt Service Reserve Account is the greater or equal to the Minimum Required Balance (and, to the extent the balance at any time falls below the Minimum Required Balance as a result of any withdrawal made under paragraph (i) above, it will ensure that cash proceeds are paid into the Debt Service Reserve Account on or before the next Payment Date after the relevant withdrawal was made, in order that the Minimum Required Balance is maintained).

At any time, the Company may withdraw amounts standing to the credit of the Debt Service Reserve Account that are in excess of the Minimum Required Balance.

Account for Restricted Cash

funding the Debt Service Reserve Account;

funding Asset Acquisitions; and/or

the redemption of Promissory Certificates if required following a Permitted Asset Sale pursuant to Clause 7.4 (Redemption following Permitted Asset Sale),

Dividends and share redemption

Except as permitted under paragraph (b) below, no Obligor shall:

declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital);

repay or distribute any dividend or share premium reserve;

redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so,

Paragraph (a) above shall not apply to any Permitted Distribution.

Financial Indebtedness

Membership Interest Pledge

Arm’s length basis

Sanctions

contribute or otherwise make available all or any part of the proceeds of the Promissory Certificates, directly or indirectly, to, or for the benefit of, any individual or entity (whether or not related to the Guarantor or any member of the Group) for the purpose of financing the activities or business of, other transactions with, or investments in, any Restricted Party;

directly or indirectly fund all or part of any redemption of any Promissory Certificates out of proceeds derived from any transaction with or action involving a Restricted Party;

engage in any transaction, activity or conduct that would violate Sanctions applicable to it; or

engage in any transaction, activity or conduct that would cause any Subscriber or Holder to be in breach of any Sanctions or that could reasonably be expected to result in it or any other member of the Group or the Guarantor or any Holder or Subscriber being designated as a Restricted Party.

Further assurance

Each Obligor shall (and the Company shall procure that each other member of the Group will) promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as are necessary or desirable or as the Collateral Agent may reasonably request (and in such form as the Collateral Agent may reasonably require in favour of the Collateral Agent or its nominee(s)):

to perfect the Security created or intended to be created under or evidenced by the Transaction Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Collateral Agent or the Finance Parties provided by or pursuant to the Finance Documents or by law;

to confer on the Collateral Agent or confer on the Finance Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Transaction Security Documents; and/or

to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security.

Each Obligor shall (and the Company shall procure that each other member of the Group will) take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Collateral Agent or the Finance Parties by or pursuant to the Finance Documents.

Anti-Corruption Law

No Obligor shall (and the Company shall ensure that no member of the Group will) directly or indirectly use the proceeds of the Promissory Certificates for any purpose which would breach the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in other jurisdictions.

Each Obligor shall (and the Company shall ensure that no member of the Group will):

conduct its businesses in compliance with applicable anti-corruption laws; and

maintain policies and procedures designed to promote and achieve compliance with such laws.

Amendments

No Obligor shall (and each Obligor shall ensure that any Security Provider will not) amend, vary, novate, supplement, supersede, waive or terminate any term of a Finance Document or any other document delivered to the Original Subscribers pursuant to Clause 5.3 (Conditions precedent to the Initial Closing) except in writing:

in respect of the Finance Documents, in accordance with Clause 32 (Amendments and Waivers);

prior to or on the Initial Closing Date, with the prior written consent of the Original Subscribers; or

other than with respect to the Finance Documents, after the Initial Closing Date in a way which could not be reasonably expected materially and adversely to affect the interests of the Holders and subject to the terms of this Agreement.

The Company shall promptly supply to the Holders from time to time a copy of any document relating to any of the matters referred to in paragraphs (i) to (iii) above.

No restrictions on upstreaming cash

Conditions subsequent

Pensions and ERISA

The Obligors shall ensure that all pension Plans maintained or operated by, or for the benefit of, any Obligor or member of the Group and/or any of their employees:

are maintained and operated in all material respects in accordance with all material applicable laws and contracts and their governing provisions (including, without limitation, the applicable provisions of ERISA and the Internal Revenue Code); and

are funded substantially in accordance with the governing provisions of the Plan with any funding shortfall advised by actuaries of recognised standing being rectified in accordance with those governing provisions.

The Company shall furnish to the Holders upon request by the Voting Representative and to the extent such are reasonably available, copies of:

the annual report (Form 5500 Series) filed by any Obligor with the Employee Benefits Security Administration with respect to any Plan;

the most recent actuarial valuation report, if any, for each Plan maintained, sponsored or contributed to, or required to be maintained, sponsored or contributed to, by any Obligor; and

all notices received by any Obligor from a Multiemployer Plan sponsor or any Governmental Authority concerning an ERISA Event; and (iv) any documents described in Section 101(k) of ERISA that any Obligor may request with respect to any Multiemployer Plan to which an Obligor contributes or is required to contribute (provided that if the applicable Obligor has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, such Obligor shall promptly make a request for such documents or notices from such administrator or sponsor and shall provide copies of such documents or notices promptly after receipt thereof).

EVENTS OF DEFAULT

Non-payment

its failure to pay is not caused by an administrative or technical error or market disruption but payment is made within two Business Days of its due date; or

its failure to pay is caused by an administrative or technical error or market disruption and payment is made within five Business Days of its due date.

Financial covenants

Other obligations

Any Obligor or any Security Provider does not comply with any provision of the Finance Documents (other than those referred to in Clause 21.1 (Non-payment) and Clause 21.2 (Financial Covenants)).

No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 30 days, of the earlier of (A) a Holder giving notice to the Company and (B) the Obligor or Security Provider becoming aware of the failure to comply.

Misrepresentation

Any representation or statement made or deemed to be made by an Obligor or a Security Provider in the Finance Documents or any other document delivered by or on behalf of any Obligor or Security Provider under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.

No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 30 days of the earlier of (A) a Holder giving notice to the Company and (B) the Obligor or Security Provider becoming aware of the failure to comply.

Insolvency

An Obligor or member of the Group:

is unable or admits inability to pay its debts as they fall due;

is deemed or declared to be unable to pay its debts under applicable law;

suspends or threatens to suspend making payments on any of its debts; or

by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Holder in its capacity as such) with a view to rescheduling any of its indebtedness.

A moratorium is declared in respect of any indebtedness of any Obligor or member of the Group.

Insolvency proceedings

Any corporate action, legal proceedings or other procedure or step is taken in relation to:

the institution of any proceeding under any Debtor Relief Law, suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor or member of the Group other than a solvent liquidation or reorganisation of any Obligor or member of the Group;

a composition, compromise, assignment or arrangement with any creditor of an Obligor or member of the Group;

the appointment of a liquidator (other than in respect of a solvent liquidation of an Obligor or any other member of the Group), receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any Obligor or member of the Group or any of their respective assets; or

enforcement of any Security over any assets of any Obligor or member of the Group,

This Clause 21.6 (Insolvency Proceedings) shall not apply to:

any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 60 days of commencement; or

any step or procedure permitted in connection with a Permitted Equity Sale or Disposal.

Cessation of business

Unlawfulness

Audit qualification

Acceleration

declare that all or part of the Promissory Certificates, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or

declare that all or part of the Promissory Certificates be payable on demand, whereupon they shall immediately become payable on demand by the Majority Holders; and/or

Subject to paragraph (d) below, exercise or direct the Collateral agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents; and/or

Following the occurrence of an acceleration under this Clause 21.10 (Acceleration), the Holders agree that no enforcement action in respect of the guarantee (as set forth in Clause 16.1 (Guarantee and indemnity)) or any other Transaction Security shall take place for 60 days following such event occurring as set forth in Clause 21.10(a) and (b) (Acceleration),

CHANGES TO THE HOLDERS

Transfer of Promissory Certificates

Subject to Clause 6.5 (Regulations concerning transfers and registration), Clause 22.2 (Conditions of transfer of Promissory Certificates) and Clause 22.7 (New Holders), a Promissory Certificate may be transferred by a Holder (the “Existing Holder”) to a New Holder upon surrender of the relevant Promissory Certificate Voucher, together with an Assignment Agreement (and a Secured Party Accession Undertaking if the proposed transferee is not already a Party to this Agreement) duly completed and duly executed by the Existing Holder and the New Holder, to be delivered to the Registrar and notified to the Company, together with such evidence as the Company may reasonably require to prove the title of the Existing Holder and the authority of the individuals who have executed the Assignment Agreement.

A Promissory Certificate may not be transferred unless the principal amount of Promissory Certificates transferred and (where not all of the Promissory Certificates held by a Holder are being transferred) the principal amount of the balance of Promissory Certificates not transferred are Authorised Denominations.

Where not all the Promissory Certificates represented by the surrendered Promissory Certificate Voucher are the subject of the transfer, a new Promissory Certificate Voucher in respect of the balance of the Promissory Certificates will be issued by the Company and delivered by the Registrar to the Existing Holder.

Subject to this Clause 22 (Changes to the Holders), an Existing Holder may only (i) assign any of its rights or (ii) transfer by novation or otherwise any of its rights and obligations, under any Finance Document, to an Eligible Purchaser (the “New Holder”), unless an assignment or transfer is made at a time when an Event of Default is continuing, in which case an Existing Holder may transfer any of its rights and obligations under any Finance Document to any third party.

Conditions of transfer of Promissory Certificates

An Existing Holder must provide at least 10 Business Days’ notice to the Company and the Registrar before it may make an assignment or transfer in accordance with Clause 22.1 (Transfer of Promissory Certificate).

A transfer of the Promissory Certificates by way of assignment will only be effective on:

receipt by the Registrar, with a copy to the Company, (whether in the Assignment Agreement or otherwise) of written confirmation from the New Holder (in form and substance satisfactory to the Company) that the New Holder will assume the same obligations under this Agreement and the other Finance Documents as if it was an Original Holder;

in respect of any New Holder that is not already a Party to this Agreement, receipt by the Collateral Agent and the Registrar, with a copy to the Company, of a duly completed and duly executed Secured Party Accession Undertaking; and

the recordation of such assignment or transfer in the Register in accordance with the provisions set forth in Clauses 6 (Register and Title) and 22.7 (New Holders).

If:

a Holder assigns any of its rights under the Finance Documents or changes its Specified Office; and

as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Holder or Holder acting through its new Specified Office under Clause 11 (Tax Gross Up and Indemnities) or Clause 12 (Increased Costs),

Each New Holder, by executing the relevant Assignment Agreement, confirms that it will execute any amendment or waiver that has been approved by or on behalf of the requisite Holder or Holders in accordance with this Agreement on or prior to the date on which the assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Holder would have been had it remained a Holder.

Limitation of responsibility of Existing Holders

Unless expressly agreed to the contrary, an Existing Holder makes no representation or warranty and assumes no responsibility to a New Holder for:

the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;

the financial condition of any Obligor;

the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or

the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,

Each New Holder confirms to the Existing Holder and the other Holders that it:

has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its holding of the Promissory Certificates and has not relied exclusively on any information provided to it by the Existing Holder in connection with any Finance Document; and

will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents.

Nothing in any Finance Document obliges an Existing Holder to:

accept a re-transfer or re-assignment from a New Holder of any of the rights and obligations assigned or transferred under this Clause 22 (Changes to the Holders); or

support any losses directly or indirectly incurred by the New Holder by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.

Procedure for assignment

Subject to:

the conditions set out in Clause 22.2 (Conditions of transfer of Promissory Certificates) and Clause 22.7 (New Holders) a transfer of Promissory Certificates by way of assignment may be effected in accordance with paragraph (b) below when the Existing Holder delivers to the Company and the Registrar a duly completed Assignment Agreement (and a duly completed and duly executed Secured Party Accession Undertaking in respect of any New Holder that is not already a Party to this Agreement) and records such assignment in the Register.

On the Transfer Date:

the Existing Holder will assign absolutely to the New Holder of the Promissory Certificates held by it that are being transferred together with all the rights under the Finance Documents relating to such Promissory Certificates expressed to be the subject of the assignment in the Assignment Agreement;

the Existing Holder will be released by each Obligor and the other Holders from the obligations owed by it which relate to such Promissory Certificates (the “Relevant Obligations”) and expressed to be the subject of the release in the Assignment Agreement; and

the New Holder will be bound by obligations equivalent to the Relevant Obligations.

Holders may utilise procedures other than those set out in this Clause 22.4 (Procedure for assignment) to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor, to obtain a release by that Obligor from the obligations owed to that Obligor by the Holders nor the assumption of equivalent obligations by a New Holder) provided that they comply with the conditions set out in Clause 22.2 (Conditions of transfer of the Promissory Certificates).

Pro rata interest settlement

any interest in respect of the Promissory Certificates to be so transferred to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Holder up to but excluding that Transfer Date (“Accrued Amounts”) and shall become due and payable to the Existing Holder (without further interest accruing on them) on the last day of the current Interest Period; and

the rights transferred by the Existing Holder will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:

when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Holder; and

the amount payable to the New Holder on that date will be the amount which would, but for the application of this Clause 22.5 (Pro rata interest settlement), have been payable to it on that date, but after deduction of the Accrued Amounts.

An Existing Holder which retains the right to the Accrued Amounts pursuant to this Clause 22.5 (Pro rata interest settlement) but which does not hold any Promissory Certificates shall be deemed not to be a Holder for the purposes of ascertaining whether the agreement of any specified group of Holders has been obtained to approve any request for a consent, waiver, amendment or other vote of Holders under the Finance Documents.

Register

New Holders

Each of the Parties appoints the Registrar to receive on its behalf each Assignment Agreement, each Secured Party Accession Undertaking and, in the event of the creation, issue and subscription for any Additional Tranches by any Third Party Subscriber not hitherto party to this Agreement, each Deed of Adherence and the Registrar shall, as soon as reasonably practicable after receipt by it, sign and accept the same if it appears on its face to have been completed, executed and, where applicable, delivered in the form contemplated by this Agreement.

No transfer or assignment of Promissory Certificates by an Existing Holder shall be made to any New Holder who is not already a party to this Agreement unless that person first enters into an Assignment Agreement and a Secured Party Accession Undertaking or, in the event of the creation, issue and subscription for any Additional Tranches by any Third Party Subscriber not hitherto party to this Agreement, a Deed of Adherence and a Secured Party Accession Undertaking.

The Registrar shall not register a transfer or assignment of Promissory Certificates unless the New Holder, if not already a Party to this Agreement, first enters into an Assignment Agreement and a Secured Party Accession Undertaking or, in the event of the creation, issue and subscription for any Additional Tranches by any Third Party Subscriber not hitherto party to this Agreement, a Deed of Adherence and a Secured Party Accession Undertaking.

Where a New Holder has executed an Assignment Agreement and a Secured Party Accession Undertaking which have been countersigned by the Registrar and the Collateral Agent respectively, or, in the event of the creation, issue and subscription for any Additional Tranches by any Third Party Subscriber not hitherto party to this Agreement, executed a Deed of Adherence and a Secured Party Accession Undertaking, which has been countersigned by the Registrar and the Collateral Agent (respectively), it shall become a Party to this Agreement and the Collateral Agent Appointment Deed and be entitled to the benefit of the continuing provisions of this Agreement and the Collateral Agent Appointment Deed and shall be classified as a Holder from the Transfer Date.

CHANGES TO THE OBLIGORS, RELEASE OF GROUP SECURITY

Assignments and transfer by Obligors

Release of Group Security

Cross default

Payment obligations

CONDUCT OF BUSINESS BY THE HOLDERS

interfere with the right of any Holder to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;

oblige any Holder to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or