Published Revolving Commitment CUSIP Number: 45072UAD3
and
IVZ, INC.,
as Borrowers
as Parent
as Initial Lenders
as Administrative Agent, Swing Line Lender and L/C Issuer,
and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Book Managers
as Syndication Agent
HSBC BANK USA, NATIONAL ASSOCIATION,
MORGAN STANLEY BANK,
SUNTRUST BANK,
THE TORONTO-DOMINION BANK,
as Co-Documentation Agents
Page | ||||||
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS | 1 | |||||
Section 1.01 | Certain Defined Terms | 1 | ||||
Section 1.02 | Computation of Time Periods | 22 | ||||
Section 1.03 | Accounting Terms | 22 | ||||
Section 1.04 | Letter of Credit Amounts | 23 | ||||
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES | 23 | |||||
Section 2.01 | The Advances | 23 | ||||
Section 2.02 | Making the Advances | 24 | ||||
Section 2.03 | Letters of Credit | 25 | ||||
Section 2.04 | Swing Line Loans | 34 | ||||
Section 2.05 | Fees | 37 | ||||
Section 2.06 | Termination or Reduction of the Commitments | 38 | ||||
Section 2.07 | Repayment of Advances | 38 | ||||
Section 2.08 | Interest on Advances | 38 | ||||
Section 2.09 | Interest Rate Determination | 39 | ||||
Section 2.10 | Optional Conversion of Advances | 40 | ||||
Section 2.11 | Prepayments of Advances | 40 | ||||
Section 2.12 | Increased Costs | 41 | ||||
Section 2.13 | Illegality; Circumstances Affecting Availability | 43 | ||||
Section 2.14 | Payments Generally and Computations | 43 | ||||
Section 2.15 | Taxes | 44 | ||||
Section 2.16 | Sharing of Payments, Etc | 48 | ||||
Section 2.17 | Use of Proceeds | 49 | ||||
Section 2.18 | Cash Collateral and Other Credit Support | 49 | ||||
Section 2.19 | Joint and Several Liability | 51 | ||||
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING | 54 | |||||
Section 3.01 | Conditions Precedent to Effectiveness | 54 | ||||
Section 3.02 | Conditions Precedent to Each Borrowing and Each L/C Credit Extension | 56 | ||||
Section 3.03 | Determinations Under Section 3.01 | 56 |
-i-
(continued)
Page | ||||||
ARTICLE IV REPRESENTATIONS AND WARRANTIES | 57 | |||||
Section 4.01 | Representations and Warranties of the Parent and the Borrowers | 57 | ||||
ARTICLE V COVENANTS OF THE BORROWER | 60 | |||||
Section 5.01 | Affirmative Covenants | 60 | ||||
Section 5.02 | Negative Covenants | 64 | ||||
Section 5.03 | Financial Covenants | 68 | ||||
ARTICLE VI EVENTS OF DEFAULT | 69 | |||||
Section 6.01 | Events of Default | 69 | ||||
Section 6.02 | Application of Funds | 72 | ||||
ARTICLE VII ADMINISTRATIVE AGENT | 73 | |||||
Section 7.01 | Appointment and Authority | 73 | ||||
Section 7.02 | Rights as a Lender | 74 | ||||
Section 7.03 | Exculpatory Provisions | 74 | ||||
Section 7.04 | Reliance by Administrative Agent | 75 | ||||
Section 7.05 | Delegation of Duties | 75 | ||||
Section 7.06 | Resignation of Administrative Agent | 75 | ||||
Section 7.07 | Non-Reliance on Administrative Agent and Other Lenders | 76 | ||||
Section 7.08 | No Other Duties, Etc | 76 | ||||
Section 7.09 | Administrative Agent May File Proofs of Claim | 77 | ||||
Section 7.10 | Guaranty Matters | 77 | ||||
ARTICLE VIII MISCELLANEOUS | 78 | |||||
Section 8.01 | Amendments, Etc | 78 | ||||
Section 8.02 | Notices; Effectiveness; Electronic Communication | 79 | ||||
Section 8.03 | No Waiver; Remedies | 81 | ||||
Section 8.04 | Expenses; Indemnity; Damage Waiver | 81 | ||||
Section 8.05 | Right of Set-off | 83 | ||||
Section 8.06 | Successors and Assigns | 84 | ||||
Section 8.07 | Treatment of Certain Information; Confidentiality | 88 | ||||
Section 8.08 | Governing Law | 89 |
-ii-
(continued)
Page | ||||||
Section 8.09 | Execution in Counterparts | 89 | ||||
Section 8.10 | Survival of Representations and Warranties | 89 | ||||
Section 8.11 | Replacement of Lenders | 90 | ||||
Section 8.12 | Jurisdiction, Etc | 90 | ||||
Section 8.13 | Judgment | 91 | ||||
Section 8.14 | Waiver of Jury Trial | 92 | ||||
Section 8.15 | USA PATRIOT Act Notice | 92 | ||||
Section 8.16 | Defaulting Lenders | 92 | ||||
Section 8.17 | No Advisory or Fiduciary Relationship | 94 | ||||
Section 8.18 | Interest Rate Limitation | 95 | ||||
Section 8.19 | Severability | 95 |
-iii-
SCHEDULES | ||
Schedule I | List of Applicable Lending Offices | |
Schedule 1.01 | Commitments | |
Schedule 1.02 | Mandatory Costs | |
Schedule 4.01(b) | Subsidiaries | |
Schedule 4.01(d) | Required Authorizations | |
Schedule 4.01(i) | Disclosed Litigation | |
Schedule 5.02(a) | Existing Liens | |
Schedule 8.02 | Administrative Agent’s Office; Certain Addresses for Notices | |
EXHIBITS | ||
Form of | ||
Exhibit A | Note | |
Exhibit B-1 | Notice of Borrowing | |
Exhibit B-2 | Swing Line Loan Notice | |
Exhibit C | Assignment and Assumption | |
Exhibit D-1 | Subsidiary Guaranty | |
Exhibit D-2 | Parent Guaranty | |
Exhibit E | Opinion of U.S. Counsel for the Borrowers and certain other Loan Parties | |
Exhibit F | Opinion of U.K. Counsel for IHCL | |
Exhibit G | Opinion of Bermuda Counsel for the Parent | |
Exhibit H | Compliance Certificate | |
Exhibit I | U.K. Tax Compliance Certificate |
-iv-
1
Pricing Level | Debt Rating | All In Drawn LIBOR Spread | ||||
1 | ≥ A+/A1 | (i) 75% of CDX Index Spread rate or | ||||
(ii) 1.000%, whichever is greater | ||||||
2 | A/A2 | (i) 85% of CDX Index Spread rate or | ||||
(ii) 1.125%, whichever is greater | ||||||
3 | A-/A3 | (i) 100% of CDX Index Spread rate or | ||||
(ii) 1.375%, whichever is greater | ||||||
4 | BBB+/Baa1 | (i) 125% of CDX Index Spread rate or | ||||
(ii) 1.750%, whichever is greater | ||||||
5 | ≤ BBB/Baa2 | (i) 150% of CDX Index Spread rate or | ||||
(ii) 2.250%, whichever is greater |
2
3
Debt Rating | Applicable Percentage | |||
≥ A+/A1 | 0.200 | % | ||
A/A2 | 0.250 | % | ||
A-/A3 | 0.300 | % | ||
BBB+/Baa1 | 0.350 | % | ||
≤ BBB/Baa2 | 0.450 | % |
4
5
6
7
8
9
Eurocurrency Base Rate | ||||||
Eurocurrency Rate | = | 1.00 – Eurocurrency Reserve | ||||
Percentage |
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
Maximum | ||
Debt/EBITDA | ||
Fiscal Quarters Ending | Ratio | |
Effective Date through December 31, 2011 | 3.25 to 1.00 | |
Each fiscal quarter ending thereafter | 3.00 to 1.00 |
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
BORROWERS: INVESCO HOLDING COMPANY LIMITED | ||||
By: | ||||
Name: | ||||
Title: | ||||
IVZ, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
PARENT: INVESCO LTD. | ||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page
LENDERS: BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender | ||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page
CITIBANK | ||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page
[OTHER LENDERS] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Signature Page
Name of Initial Lender | Domestic Lending Office | Eurocurrency Lending Office | ||||||
Bank of America, N.A. | See Schedule 8.02 | |||||||
Citibank N.A. | 1615 Brett Road, Building III | 1615 Brett Road, Building III | ||||||
New Castle, Delaware 19720 | New Castle, Delaware 19720 | |||||||
Attention: | Vince Napoli | Attention: | Vince Napoli | |||||
Telephone: | 302-894-6052 | Telephone: | 302-894-6052 | |||||
Facsimile: | 212-994-0847 | Facsimile: | 212-994-0847 | |||||
Morgan Stanley Bank, N.A. | 201 South Main Street, 5th Floor | 201 South Main Street, 5th Floor | ||||||
Salt Lake City, UT 84111 | Salt Lake City, UT 84111 | |||||||
Attention: | Carrie D. Johnson | Attention: | Carrie D. Johnson | |||||
Telephone: | 801-236-3655 | Telephone: | 801-236-3655 | |||||
Facsimile: | 718-233-0967 | Facsimile: | 718-233-0967 | |||||
The Bank of New York Mellon | One Wall Street, 17th Floor | One Wall Street, 17th Floor | ||||||
New York, New York 10286 | New York, New York 10286 | |||||||
Attention: | Paulette Truman | Attention: | Paulette Truman | |||||
Telephone: | 212-635-6407 | Telephone: | 212-635-6407 | |||||
Facsimile: | 212-809-9520 | Facsimile: | 212-809-9520 | |||||
SunTrust Bank | 303 Peachtree Street, 10th Floor | 303 Peachtree Street, 10th Floor | ||||||
Atlanta, Georgia 30308 | Atlanta, Georgia 30308 | |||||||
Attention: | Deborah Scruggs | Attention: | Deborah Scruggs | |||||
Telephone: | 404-230-1938 | Telephone: | 404-230-1938 | |||||
Facsimile: | 404-588-4402 | Facsimile: | 404-588-4402 | |||||
HSBC Bank USA, NA | One HSBC Center | One HSBC Center | ||||||
Buffalo, New York 14203 | Buffalo, New York 14203 | |||||||
Attention: | Donna L. Riley | Attention: | Donna L. Riley | |||||
Telephone: | 716-841-4178 | Telephone: | 716-841-4178 | |||||
Facsimile: | 716-841-0296 | Facsimile: | 716-841-0296 | |||||
Toronto Dominion (New York) LLC | 31 West 52nd Street | 31 West 52nd Street | ||||||
New York, New York 10019 | New York, New York 10019 | |||||||
Attention: | Gail Cuthbert | Attention: | Gail Cuthbert | |||||
Telephone: | 416-307-6107 | Telephone: | 416-307-6107 | |||||
Facsimile: | 416-983-1708 | Facsimile: | 416-983-1708 | |||||
JPMorgan Chase Bank | 270 Park Avenue, Floor 4 | 270 Park Avenue, Floor 4 | ||||||
New York, New York 10017 | New York, New York 10017 | |||||||
Attention: | Ayesha Umer | Attention: | Ayesha Umer | |||||
Telephone: | 212-270-6851 | Telephone: | 212-270-6851 | |||||
Facsimile: | 212-270-1511 | Facsimile: | 212-270-1511 | |||||
Name of Initial Lender | Domestic Lending Office | Eurocurrency Lending Office | ||||||
State Street Bank and Trust Company | 100 Huntington Avenue, Tower 2 | 100 Huntington Avenue, Tower 2 | ||||||
Boston, Massachusetts 02206 | Boston, Massachusetts 02206 | |||||||
Attention: | Eola Romano | Attention: | Eola Romano | |||||
Telephone: | 617-937-8807 | Telephone: | 617-937-8807 | |||||
Facsimile: | 617-937-8833 | Facsimile: | 617-937-8833 | |||||
Wells Fargo Bank, National Association | 90 South 7th Street | 90 South 7th Street | ||||||
MAC N9305-075 | MAC N9305-075 | |||||||
Minneapolis, Minnesota 55402 | Minneapolis, Minnesota 55402 | |||||||
Attention: | Thomas Doddridge | Attention: | Thomas Doddridge | |||||
Telephone: | 312-781-0722 | Telephone: | 312-781-0722 | |||||
Facsimile: | 312-845-8606 | Facsimile: | 312-845-8606 | |||||
Credit Suisse AG, Cayman Islands | Eleven Madison Avenue | Eleven Madison Avenue | ||||||
Branch | New York, New York 10010 | New York, New York 10010 | ||||||
Attention: | Jay Chall | Attention: | Jay Chall | |||||
Telephone: | 212-325-9010 | Telephone: | 212-325-9010 | |||||
Facsimile: | 212-743-1843 | Facsimile: | 212-743-1843 | |||||
Goldman Sachs Bank USA | 200 West Street | 200 West Street | ||||||
New York, New York 10282 | New York, New York 10282 | |||||||
Attention: | Andrew Caditz | Attention: | Andrew Caditz | |||||
Telephone: | 212-934-3921 | Telephone: | 212-934-3921 | |||||
Facsimile: | 917-977-3966 | Facsimile: | 917-977-3966 | |||||
Barclays Bank PLC | Level 11, 1 Churchill Place | Level 11, 1 Churchill Place | ||||||
London, E14 5HP | London, E14 5HP | |||||||
Attention: | Mike Moore | Attention: | Mike Moore | |||||
Telephone: | 44 (0) 20 7116 6347 | Telephone: | 44 (0) 20 7116 6347 | |||||
Facsimile: | N/A | Facsimile: | N/A | |||||
BNP Paribas | 787 Seventh Avenue | 787 Seventh Avenue | ||||||
New York, New York 10019 | New York, New York 10019 | |||||||
Attention: | Sean Bradley | Attention: | Sean Bradley | |||||
Telephone: | 212-841-2108 | Telephone: | 212-841-2108 | |||||
Facsimile: | 212-841-2717 | Facsimile: | 212-841-2717 |
Lender | Commitment | Applicable Percentage | ||||||
Bank of America, N.A. | $ | 120,000,000.00 | 9.600000000 | % | ||||
Citibank N.A. | $ | 120,000,000.00 | 9.600000000 | % | ||||
The Bank of New York Mellon | $ | 107,000,000.00 | 8.560000000 | % | ||||
HSBC Bank USA, NA | $ | 107,000,000.00 | 8.560000000 | % | ||||
Morgan Stanley Bank, N.A. | $ | 107,000,000.00 | 8.560000000 | % | ||||
SunTrust Bank | $ | 107,000,000.00 | 8.560000000 | % | ||||
Toronto Dominion (New York) LLC | $ | 107,000,000.00 | 8.560000000 | % | ||||
JPMorgan Chase Bank, N.A. | $ | 75,000,000.00 | 6.000000000 | % | ||||
State Street Bank and Trust Company | $ | 75,000,000.00 | 6.000000000 | % | ||||
Wells Fargo Bank, National Association | $ | 75,000,000.00 | 6.000000000 | % | ||||
Credit Suisse AG, Cayman Islands Branch | $ | 75,000,000.00 | 6.000000000 | % | ||||
Goldman Sachs Bank USA | $ | 75,000,000.00 | 6.000000000 | % | ||||
Barclays Bank PLC | $ | 50,000,000.00 | 4.000000000 | % | ||||
BNP Paribas | $ | 50,000,000.00 | 4.000000000 | % | ||||
Total | $ | 1,250,000,000.00 | 100.00000000 | % | ||||
1. | The Mandatory Cost (to the extent applicable) is an addition to the interest rate to compensate Lenders for the cost of compliance with: |
(a) | the requirements of the Bank of England and/or the Financial Services Authority (or, in either case, any other authority which replaces all or any of its functions); or | ||
(b) | the requirements of the European Central Bank. |
2. | On the first day of each Interest Period (or as soon as practicable thereafter) the Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Administrative Agent as a weighted average of the Lenders’ Additional Cost Rates (weighted in proportion to the percentage participation of each Lender in the relevant Loan) and will be expressed as a percentage rate per annum. The Administrative Agent will, at the request of the Borrowers or any Lender, deliver to the Borrowers or such Lender as the case may be, a statement setting forth the calculation of any Mandatory Cost. | |
3. | The Additional Cost Rate for any Lender lending from a Eurocurrency Lending Office in a Participating Member State will be the percentage notified by that Lender to the Administrative Agent. This percentage will be certified by such Lender in its notice to the Administrative Agent as the cost (expressed as a percentage of such Lender’s participation in all Advances made from such Eurocurrency Lending Office) of complying with the minimum reserve requirements of the European Central Bank in respect of Advances made from that Eurocurrency Lending Office. | |
4. | The Additional Cost Rate for any Lender lending from a Eurocurrency Lending Office in the United Kingdom will be calculated by the Administrative Agent as follows: |
(a) | in relation to any Advance in Sterling: |
AB+C(B-D)+E x 0.01 | per cent per annum | |
100 - - (A+C) |
(b) | in relation to any Advance in any currency other than Sterling: |
E x 0.01 | per cent per annum | |
300 |
“A” | is the percentage of Eligible Liabilities (assuming these to be in excess of any stated minimum) which that Lender is from time to time required to maintain as an interest free cash ratio deposit with the Bank of England to comply with cash ratio requirements. | ||
“B” | is the percentage rate of interest (excluding the Applicable Margin, the Mandatory Cost and any interest charged on overdue amounts pursuant toSection 2.07(b) and, in the case of interest (other than on overdue amounts) charged at the Default Rate, without counting any increase in interest rate effected by the charging of the Default Rate) payable for the relevant Interest Period of such Advance. | ||
“C” | is the percentage (if any) of Eligible Liabilities which that Lender is required from time to time to maintain as interest bearing Special Deposits with the Bank of England. | ||
“D” | is the percentage rate per annum payable by the Bank of England to the Administrative Agent on interest bearing Special Deposits. | ||
“E” | is designed to compensate Lenders for amounts payable under the Fees Regulations and is calculated by the Administrative Agent as being the average of the most recent rates of charge supplied by the Lenders to the Administrative Agent pursuant toparagraph 7 below and expressed in pounds per £1,000,000. |
5. | For the purposes of this Schedule: |
(a) | “Eligible Liabilities” and “Special Deposits” have the meanings given to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank of England; | ||
(b) | “Fees Regulations” means the FSA Supervision Manual or such other law or regulation as may be in force from time to time in respect of the payment of fees for the acceptance of deposits; | ||
(c) | “Fee Tariffs” means the fee tariffs specified in the Fees Regulations under the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuant to the Fees Regulations but taking into account any applicable discount rate); | ||
(d) | “EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency. | ||
(e) | “Participating Member State” means each state so described in any EMU Legislation. |
(f) | “Tariff Base” has the meaning given to it in, and will be calculated in accordance with, the Fees Regulations. |
6. | In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e.5% will be included in the formula as 5 and not as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places. | |
7. | If requested by the Administrative Agent or the Borrowers, each Lender with a Eurocurrency Lending Office in the United Kingdom or a Participating Member State shall, as soon as practicable after publication by the Financial Services Authority, supply to the Administrative Agent and the Borrowers, the rate of charge payable by such Lender to the Financial Services Authority pursuant to the Fees Regulations in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by such Lender as being the average of the Fee Tariffs applicable to such Lender for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of such Lender. | |
8. | Each Lender shall supply any information required by the Administrative Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation, each Lender shall supply the following information in writing on or prior to the date on which it becomes a Lender: |
(a) | its jurisdiction of incorporation and the jurisdiction of the Eurocurrency Lending Office out of which it is making available its participation in the relevant Advance; and | ||
(b) | any other information that the Administrative Agent may reasonably require for such purpose. |
9. | The percentages or rates of charge of each Lender for the purpose of A, C and E above shall be determined by the Administrative Agent based upon the information supplied to it pursuant toparagraphs 7 and8 above and on the assumption that, unless a Lender notifies the Administrative Agent to the contrary, each Lender’s obligations in relation to cash ratio deposits, Special Deposits and the Fees Regulations are the same as those of a typical bank from its jurisdiction of incorporation with a Eurocurrency Lending Office in the same jurisdiction as such Lender’s Eurocurrency Lending Office. | |
10. | The Administrative Agent shall have no liability to any Person if such determination results in an Additional Cost Rate which over- or under-compensates any Lender and shall be entitled to assume that the information provided by any Lender pursuant toparagraphs 3,7 and8 above is true and correct in all respects. |
11. | The Administrative Agent shall distribute the additional amounts received as a result of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based on the information provided by each Lender pursuant toparagraphs 3,7 and8 above. | |
12. | Any determination by the Administrative Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall, in the absence of manifest error, be conclusive and binding on all parties hereto. | |
13. | The Administrative Agent may from time to time, after consultation with the Borrowers and the Lenders, determine and notify to all parties any amendments which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all parties hereto. |
Company Name | Country | |||
1. | 1371 Preferred Inc. | Canada | ||
2. | A I M Capital Management Company Limited | Ireland | ||
3. | AIM GP Canada Inc | Canada | ||
4. | AMVESCAP Limited | United Kingdom | ||
5. | AT Planning Services, Inc. | United States | ||
6. | Atlantic Trust Group, Inc. | United States | ||
7. | Atlantic Wealth Holdings Limited | United Kingdom | ||
8. | Atlantic Wealth Management International Limited | Jersey | ||
9. | Atlantic Wealth Management Limited | United Kingdom | ||
10. | C M Investment Nominees Limited | United Kingdom | ||
11. | Chancellor Citiventure 96 Partner (Cayman) Ltd | Cayman Islands | ||
12. | Coff Associates (Cayman) Limited | Cayman Islands | ||
13. | CPCO Associates (Cayman) Limited | Cayman Islands | ||
14. | Elliot Associates Limited | United Kingdom | ||
15. | Finemost Limited | United Kingdom | ||
16. | Fund Management Company | USA | ||
17. | Huaneng Invesco WLR Investment Consulting Company Ltd. | China | ||
18. | HVH Immobilien- und Beteiligungs GmbH | Germany | ||
19. | HVH USA, Inc. | USA | ||
20. | IAS Asset I LLC | United States | ||
21. | IAS Operating Partnership LP | United States | ||
22. | IMC Investments I LLC | United States | ||
23. | INVESCO (B.V.I.) NOMINEES LIMITED | Virgin Islands, British | ||
24. | INVESCO (Cayman Islands) Ltd. | Cayman Islands | ||
25. | Invesco A I M Management Company Limited | Ireland | ||
26. | Invesco Administration Services Limited | United Kingdom | ||
27. | Invesco Advisers, Inc.* | USA | ||
28. | Invesco Aim Global Holdings, Inc. | USA | ||
29. | Invesco Aim Retirement Services, Inc. | USA | ||
30. | INVESCO Asset Management (Bermuda) Ltd | Bermuda | ||
31. | Invesco Asset Management (Japan) Limited | Japan | ||
32. | Invesco Asset Management (Schweiz) AG | Switzerland | ||
33. | Invesco Asset Management Asia Limited | Hong Kong | ||
34. | Invesco Asset Management Australia (Holdings) Ltd | Australia | ||
35. | Invesco Asset Management Deutschland GmbH | Germany | ||
36. | INVESCO Asset Management Ireland Holdings Limited | Ireland | ||
37. | INVESCO Asset Management Ireland Limited | Ireland | ||
38. | Invesco Asset Management Limited | United Kingdom |
* | Material Subsidiaries |
Company Name | Country | |||
39. | Invesco Asset Management Österreich GmbH | Austria | ||
40. | Invesco Asset Management Pacific Limited | Hong Kong | ||
41. | Invesco Asset Management SA | France | ||
42. | Invesco Asset Management Singapore Ltd | Singapore | ||
43. | Invesco Australia Limited | Australia | ||
44. | Invesco Canada Holdings Inc. | Canada | ||
45. | INVESCO CE SA | Belgium | ||
46. | Invesco CE Services SA | Belgium | ||
47. | INVESCO Continental Europe Holdings SA | Luxembourg | ||
48. | INVESCO Distributors, Inc. | USA | ||
49. | Invesco Fund Managers Limited* | United Kingdom | ||
50. | INVESCO Funds Group, Inc. | USA | ||
51. | INVESCO Global Asset Management (Bermuda) Limited | Bermuda | ||
52. | INVESCO Global Asset Management Limited | Ireland | ||
53. | Invesco Global Investment Funds Limited | United Kingdom | ||
54. | Invesco Group Limited | United Kingdom | ||
55. | Invesco Group Services, Inc. | USA | ||
56. | Invesco GT Asset Management PLC | United Kingdom | ||
57. | Invesco Holding Company Limited | United Kingdom | ||
58. | INVESCO Holding Germany Ltd & Co OHG | Germany | ||
59. | INVESCO Holland B.V. | Netherlands | ||
60. | Invesco Hong Kong Limited | Hong Kong | ||
61. | Invesco Hungary LLC | Hungary | ||
62. | Invesco Inc. | Canada | ||
63. | Invesco Insurance Agency, Inc. | USA | ||
64. | INVESCO International (Southern Africa) Limited | South Africa | ||
65. | Invesco International Holdings Limited | United Kingdom | ||
66. | INVESCO International Limited | Jersey | ||
67. | INVESCO International Nominees Limited | Jersey | ||
68. | Invesco Investment Services, Inc. | USA | ||
69. | Invesco Investments (Bermuda) Ltd. | Bermuda | ||
70. | Invesco Kapitalanlagegesellschaft mbH | Germany | ||
71. | INVESCO Management GmbH | Germany | ||
72. | Invesco Management Group, Inc. | USA | ||
73. | INVESCO Management S.A. | Luxembourg | ||
74. | Invesco Mortgage Capital Inc. | United States | ||
75. | INVESCO National Trust Company | USA | ||
76. | Invesco North American Group Limited | United Kingdom | ||
77. | Invesco North American Holdings, Inc. | USA | ||
78. | Invesco Pacific Group Limited | United Kingdom | ||
79. | Invesco Pacific Holdings Limited | Bermuda | ||
80. | INVESCO Pacific Partner Ltd | Bermuda |
* | Material Subsidiaries |
Company Name | Country | |||
81. | Invesco Pension Trustees Limited | United Kingdom | ||
82. | Invesco Perpetual Life Limited | United Kingdom | ||
83. | INVESCO Powershares Capital Management Ireland Limited | Ireland | ||
84. | Invesco PowerShares Capital Management LLC* | USA | ||
85. | INVESCO Private Capital Investments, Inc. | USA | ||
86. | INVESCO Private Capital Verwaltung GMBH (in liquidation 25.4.07) | Germany | ||
87. | Invesco Private Capital, Inc. | United States | ||
88. | INVESCO Properties Limited | Ireland | ||
89. | INVESCO Real Estate Germany LLC | USA | ||
90. | INVESCO Real Estate GmbH | Germany | ||
91. | Invesco Real Estate Limited | United Kingdom | ||
92. | Invesco Real Estate Management S.a.r.l. | Luxembourg | ||
93. | Invesco Realty Asia I, Ltd | Cayman Islands | ||
94. | INVESCO Realty, Inc. | USA | ||
95. | Invesco Savings Scheme (Nominees) Limited | United Kingdom | ||
96. | Invesco Senior Secured Management, Inc. | USA | ||
97. | INVESCO Services Ltd OHG | Germany | ||
98. | Invesco Taiwan Limited | R.O.C. | ||
99. | Invesco Trimark Dealer Inc./Courtage Invesco Trimark Inc. | Canada | ||
100. | Invesco Trimark Ltd./Invesco Trimark Ltée | Canada | ||
101. | Invesco UK Holdings PLC | United Kingdom | ||
102. | Invesco UK Limited | United Kingdom | ||
103. | Invesco WLR Limited | Hong Kong | ||
104. | Invesco WLR Private Equity Investment Management Limited | Hong Kong | ||
105. | Investment Fund Administrators Limited | Ireland | ||
106. | IPE Ross Management Ltd | united states | ||
107. | IRE (Cayman) Limited | Cayman Islands | ||
108. | IRE (China) Limited | China | ||
109. | IRE (Hong Kong) Limited | Hong Kong | ||
110. | IRE Japan, Ltd | Japan | ||
111. | IVZ Finance Limited | Ireland | ||
112. | IVZ Immobilien Verwaltungs GmbH | Germany | ||
113. | IVZ Mauritius Services Private Limited | Mauritius | ||
114. | IVZ, Inc. | USA | ||
115. | James Bryant Limited | United Kingdom | ||
116. | PCM Properties LLC | United States | ||
117. | Perpetual Holdings, Inc. | United States | ||
118. | Perpetual plc | United Kingdom | ||
119. | Perpetual Portfolio Management Limited | United Kingdom | ||
120. | Perpetual Unit Trust Management (Nominees) Limited | United Kingdom | ||
121. | Ross CG Management LP | United states | ||
122. | Ross Expansion Associates LP | United States |
* | Material Subsidiaries |
Company Name | Country | |||
123. | Sermon Lane Nominees Limited | United Kingdom | ||
124. | Sovereign G/.P. Holdings Inc | USA | ||
125. | Stein Roe Investment Counsel, Inc. | United States | ||
126. | V.V. Edinburgh R.W. G.P. Limited (in liquidation) | United Kingdom | ||
127. | V.V. Epsom G.P. Limited (in liquidation) | United Kingdom | ||
128. | V.V. General Partner Limited (in liquidation) | United Kingdom | ||
129. | V.V. Glasgow (No.1) G.P. Limited (in liquidation) | United Kingdom | ||
130. | V.V. Milton Keynes G.P. Limited (in liquidation) | United Kingdom | ||
131. | V.V. Nominees Limited (in liquidation) | United Kingdom | ||
132. | V.V. Northampton (No.2) G.P. Limited (in liquidation) | United Kingdom | ||
133. | V.V. Northampton G.P. Limited (in liquidation) | United Kingdom | ||
134. | V.V. Reading G.P. Limited (in liquidation) | United Kingdom | ||
135. | V.V. Real Property G.P. Limited (in liquidation) | United Kingdom | ||
136. | V.V. Real Property Nominees Limited (in liquidation) | United Kingdom | ||
137. | V.V. Redhill G.P. Limited (in liquidation) | United Kingdom | ||
138. | V.V. Slough G.P. Limited (in liquidation) | United Kingdom | ||
139. | V.V. Soho G.P. Limited (in liquidation) | United Kingdom | ||
140. | V.V. Stockton G.P. Limited (in liquidation) | United Kingdom | ||
141. | V.V. Watford G.P. Limited (in liquidation) | United Kingdom | ||
142. | VV CR 1s.r.o. | Czech Republic | ||
143. | VV Immobilien Verwaltungs GmbH | Germany | ||
144. | VV Immobilien Verwaltungs und Beteiligungs GmbH | Germany | ||
145. | VV USA LLC | USA | ||
146. | W.L. Ross & Co, LLC | United States | ||
147. | W.L. Ross & Co. (India) LLC | United States | ||
148. | W.L. Ross M & T, LLC | United States | ||
149. | W.L.Ross & Co., LLC | United States | ||
150. | WL Ross (India) Private Limited | United States | ||
151. | WL Ross DIP Management LLC | United States | ||
152. | WLR China Energy Associates Ltd | Cayman Islands | ||
153. | WLR Euro Wagon Management Ltd | United states |
* | Material Subsidiaries |
CERTAIN ADDRESSES FOR NOTICES
1555 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Rod Ellis
Telephone: 404-479-2919
Telecopier: 404-962-8354
E-Mail: rod_ellis@invesco.com
Website Address: Invesco.com
1555 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Rod Ellis
Telephone: 404-479-2919
Telecopier: 404-962-8354
E-Mail: rod_ellis@invesco.com
Website Address: Invesco.com
One Independence Center
101 North Tryon Street
Mail Code: NC1-001-04-39
Charlotte, North Carolina 28255-0001
Attention: Rose M. Bollard
Telephone: 980-386-2881
Telecopier: 704-409-0355
E-Mail: rose.ballard@baml.com
Reference: IVZ, Inc.
ABA No.: 026009593
Agency Management
Bank of America Plaza
101 South Tryon Street
Mail Code: NC1-002-15-36
Charlotte, North Carolina 28255-0001
Attention: William A. Cessna
Telephone: 980-388-1639
Telecopier: 704-264-2501
E-Mail: william.a.cessna@baml.com
One Independence Center
101 North Tryon Street
Mail Code: NC1-001-04-39
Charlotte, North Carolina 28255-0001
Attention: Rose M. Bollard
Telephone: 980-386-2881
Telecopier: 704-409-0355
E-Mail: rose.ballard@baml.com
Reference: IVZ, Inc.
ABA No.: 026009593
Trade Operations
1 Fleet Way
Mail Code: PA6-580-02-30
Scranton, Pennsylvania 18507
Attention: Mary J. Cooper
Telephone: 570-330-4235
Telecopier: 570-330-4186
E-Mail: mary.j.cooper@bankofamerica.com
Account No.: 04535-883980
Reference: IVZ, Inc. and LC #
ABA No.: 026009593 (New York, NY)
Attention: Scranton Standby
FORM OF NOTE
U.S.$ | Dated: May 24, 2010 |
A-1
Form of Note
INVESCO HOLDING COMPANY LIMITED | ||||
By: | ||||
Name: | ||||
Title: | ||||
IVZ, INC. | ||||
By: | ||||
Name: | ||||
Title: |
A-2
Form of Note
Amount of | ||||||||
Principal Paid or | Unpaid Principal | |||||||
Date | Amount of Advance | Prepaid | Balance | Notation Made By | ||||
A-3
Form of Note
FORM OF NOTICE OF BORROWING
One Independence Center
101 North Tryon Street
Mail Code: NC1-001-04-39
Charlotte, North Carolina 28255-0001
Attention: Rose M. Bollard
(i) | The Business Day of the Proposed Borrowing is , 20_. | ||
(ii) | The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances]. | ||
(iii) | The aggregate amount of the Proposed Borrowing is [$ ] [£ ]. | ||
[(iv) | The initial Interest Period for each Eurocurrency Rate Advance made as part of the Proposed Borrowing is month[s].] |
B-1-1
Form of Notice of Borrowing
Very truly yours, IVZ, INC., as Borrower Agent | ||||
By: | ||||
Name: | ||||
Title: |
B-1-2
Form of Notice of Borrowing
FORM OF SWING LINE LOAN NOTICE
To: | Bank of America, N.A., as Swing Line Lender Bank of America, N.A., as Administrative Agent |
1. | On (a Business Day). | ||
2. | In the amount of $ . |
Very Truly Yours, IVZ, INC., as Borrower Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
B-2-1
Form of Swing Line Loan Notice
FORM OF ASSIGNMENT AND ASSUMPTION
1 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. | |
2 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. | |
3 | Select as appropriate. | |
4 | Include bracketed language if there are either multiple Assignors or multiple Assignees. | |
5 | Include all applicable subfacilities. |
C-1
Form of Assignment and Assumption
1. | Assignor[s]: | |
2. | Assignee[s]: | |
3. | Borrowers: INVESCO HOLDING COMPANY LIMITED and IVZ, INC. | |
4. | Administrative Agent: BANK OF AMERICA, N.A., as the administrative agent under the Credit Agreement | |
5. | Credit Agreement: Credit Agreement dated as of May 24, 2010 among INVESCO HOLDING COMPANY LIMITED, a company organized under the laws of England and Wales (“IHCL”), IVZ, INC., a Delaware corporation (together with IHCL, the “Borrowers” and each individually, a “Borrower”), INVESCO LTD., as Parent, the Lenders from time to time party thereto, and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, as the same may be amended, restated, supplemented or otherwise modified from time to time. | |
6. | Assigned Interest: |
Aggregate Amount of | Percentage | |||||||||
Commitment for all | Amount of | Assigned of | ||||||||
Assignor[s]6 | Assignee[s]7 | Lenders8 | Commitment Assigned | Commitment9 | CUSIP Number | |||||
$ | $ | % | ||||||||
$ | $ | |||||||||
$ | $ | % |
[7. | Trade Date: ]10 |
6 | List each Assignor, as appropriate. | |
7 | List each Assignee, as appropriate. | |
8 | Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. | |
9 | Set forth, to at least 9 decimals, as a percentage of the Commitment of all Lenders thereunder. | |
10 | To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. |
C-2
Form of Assignment and Assumption
ASSIGNOR [NAME OF ASSIGNOR] | ||||
By: | ||||
Title: | ||||
ASSIGNEE [NAME OF ASSIGNEE] | ||||
By: | ||||
Title: | ||||
C-3
Form of Assignment and Assumption
Consented to and Accepted: BANK OF AMERICA, N.A. as Swing Line Lender and L/C Issuer | ||||
By: | ||||
Title: | ||||
[Consented to and]11 Accepted: BANK OF AMERICA, N.A., as Administrative Agent | ||||
By: | ||||
Title: | ||||
[Consented to:]12 IVZ, INC. | ||||
By: | ||||
Title: | ||||
INVESCO HOLDING COMPANY LIMITED | ||||
By: | ||||
Title: | ||||
11 | To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. | |
12 | To be added only if the consent of the Borrower is required by the terms of the Credit Agreement. |
C-4
Form of Assignment and Assumption
ASSIGNMENT AND ASSUMPTION
C-5
Form of Assignment and Assumption
C-6
Form of Assignment and Assumption
FORM OF SUBSIDIARY GUARANTY
D-1-1
Form of Subsidiary Guaranty
INVESCO ADVISERS, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
INVESCO NORTH AMERICAN HOLDINGS, INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
INVESCO MANAGEMENT GROUP INC. | ||||
By: | ||||
Name: | ||||
Title: | ||||
FORM OF PARENT GUARANTY
D-2-1
Form of Parent Guaranty
2
3
4
5
6
INVESCO LTD. | ||||
By: | ||||
Name: | ||||
Title: | ||||
FORM OF OPINION OF U.S. COUNSEL
FOR THE BORROWERS AND CERTAIN OTHER LOAN PARTIES
E-1
Form of Opinion of U.S. Counsel
for the Borrower and Certain Other Loan Parties
1201 West Peachtree Street
Atlanta, GA 30309-3424
Fax: 404-881-7777
www.alston.com
to the Credit Agreement dated
as of June 9, 2009
among IVZ, Inc., Invesco Holding
Company Limited, Invesco Ltd.,
said Lenders and Bank of America, N.A.,
as Administrative Agent
Page 2
(a) the Credit Agreement; | |
(b) the Notes; | |
(c) the Parent Guaranty; and | |
(d) the Subsidiary Guaranty. |
Page 3
Page 4
Page 5
Page 6
Very truly yours, Alston & Bird LLP | ||||
By: | ||||
Partner | ||||
Page 2
Page 3
FORM OF OPINION OF ENGLISH COUNSEL FOR IHCL
Form of Opinion of U.K. Counsel for IHCL
One Silk Street
London EC2Y 8HQ
Telephone (+44) 20 7456 2000
Facsimile (+44) 20 7456 2222
DX Box Number 10 CDE
the Lenders from time to time party to
the Agreement
(as defined below)
c/o Bank of America, N.A.
1 | Introduction | |
We have acted as English legal advisers to Invesco Holding Company Limited in its capacity as a Borrower (the “Company”) in connection with a U.S.$1,250,000.000 3-year credit agreement dated as of 24 May 2010 between, amongst others, the Company, IVZ, Inc., a Delaware corporation (“IVZ”), Invesco Ltd., a company organised under the laws of Bermuda, the Lenders named in it and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer (the “Agreement”) and the promissory notes to be issued to each of the Lenders named in the Agreement pursuant to the Agreement (the “Notes”). | ||
2 | English Law | |
This opinion is limited to English law as applied by the English courts and published and in effect on the date of this opinion. It is given on the basis that all matters relating to it will be governed by, and that it (including all terms used in it) will be construed in accordance with, English law. | ||
3 | Scope of Inquiry | |
For the purpose of this opinion, we have examined the following documents |
3.1 | A PDF copy of the executed Agreement. |
3.2 | A template form of Note. | ||
3.3 | A copy of the Certificate of Incorporation and the Certificates of Incorporation on Change of Name of the Company. | ||
3.4 | A copy of the Memorandum and Articles of Association of the Company. | ||
3.5 | A copy of a written resolution of the Directors of the Company dated 21 May 2010. | ||
3.6 | A copy of an unanimous written resolution of the shareholders of the Company dated 21 May 2010. | ||
3.7 | A certificate from the Company dated 24 May 2010 in relation to the documents referred to above. | ||
3.8 | The results of an on-line search in respect of the Company on the Companies House Direct Service made on 24 May 2010 at 11.20 AM (the“Search”). | ||
3.9 | The results of a telephone search in respect of the Company at the Central Register of Winding Up Petitions made on 24 May 2010 at 11:23 AM (the“Telephone Search”). |
4 | Assumptions | |
For the purpose of this opinion, we have made the following assumptions: |
4.1 | All copy documents conform to the originals and all originals are genuine and complete. | ||
4.2 | Each signature is the genuine signature of the individual concerned. | ||
4.3 | The documents referred to in paragraphs 3.3 and 3.4 are up-to-date. | ||
4.4 | The written resolutions referred to in paragraphs 3.5 and 3.6 were validly passed and remain in full force and effect without modification. | ||
4.5 | The Agreement and the Notes are within the capacity and powers of, and have been validly authorised and signed by, each party other than the Company. | ||
4.6 | The Agreement and the Notes have been signed on behalf of the Company by a person authorised by the written resolution referred to in paragraph 3,5. | ||
4.7 | The Agreement and the Notes are valid, binding and enforceable on each party under New York law by which they are expressed to be governed. | ||
4.8 | The Agreement and the Notes have the same meaning and effect under New York law as they would have if they were interpreted under English law by an English court and there are no provisions of New York law which would affect this opinion. | ||
4.9 | There are no dealings between the parties that affect the Agreement or the Notes. | ||
4.10 | So far as this opinion relates to the joint and several liability and guarantee of the Company for all borrowings of IVZ under the Agreement, it is given on the assumption that such joint and several liability and guarantee of the Company have been given in good faith and for the purpose of carrying on its business and that, when they were given, there were reasonable grounds for believing that undertaking such joint and several liability and guarantee would benefit the Company. |
Page 3 of 5
4.11 | None of the proceeds of the facilities provided pursuant to the Agreement will be used directly or indirectly to finance or refinance an acquisition of shares in contravention of Sections 678 or 679 of the Companies Act 2006 (as amended). | ||
4.12 | All applicable provisions of the Financial Services and Markets Act 2000 and any applicable secondary legislation made under it have been complied with with respect to the Agreement and the Notes. | ||
4,13 | The Notes are not and will not be offered or sold in the UK, except to any person whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses and no public offer of the Notes will be made in the UK, except to any legal entity which is authorised or regulated to operate in the financial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities. | ||
4.14 | With respect to the Notes, this opinion speaks as if the Notes have been entered into on the date of the Agreement in all material respects in the same form as the template referred to in paragraph 3.2. |
5 | Opinion | |
Based on the documents referred to and assumptions in paragraphs 3 and 4 and subject to the qualifications in paragraph 6 and to any matters not disclosed to us, we are of the following opinion: |
5.1 | The Company has been incorporated and is existing as a company with limited liability under the laws of England. | ||
5.2 | The Company has the corporate power to enter into and perform the Agreement and the Notes. | ||
5.3 | The Company has taken all necessary corporate action to authorise its entry into and performance of the Agreement and the Notes. | ||
5.4 | Under English law, there are no governmental or regulatory consents, approvals or authorisations required by the Company for its entry into and performance of the Agreement or the Notes. | ||
5.5 | Under English law, there are no registration, filing or similar formalities required to ensure the legality, validity, binding effect and enforceability against the Company of the Agreement or the Notes. | ||
5.6 | The entry into and performance of the Agreement and the Notes by the Company does not violate English law or the Memorandum or Articles of Association of the Company. | ||
5.7 | Save for in the circumstances set out in paragraphs 6.11 and 6.12, if proceedings were brought before the English courts and the choice of New York law as the governing law of the Agreement is pleaded and proved as a fact in accordance with English procedural and evidential rules, the choice of New York law as the governing law of the Agreement would be recognised in England. | ||
5.8 | A final and conclusive judgment against the Company for the payment of a specific sum of money rendered by a United States Federal or New York State court sitting in New York City |
Page 4 of 5
arising out of or in connection with the Agreement or the Notes will be recognised by and enforceable in the English courts as creating a debt enforceable against the Company if: |
(i) | the foreign court had jurisdiction over the Company in accordance with English law (and, in our opinion, for these purposes, the English courts will recognise a contractual submission to the jurisdiction of a United States Federal or New York State court sitting in New York City); | ||
(ii) | the foreign judgment was not contrary to English public policy, for multiple damages or based on a provision of law specified under the Protection of Trading Interests Act 1980 nor obtained by fraud or in breach of the rules of natural justice; | ||
(iii) | the foreign judgment was not inconsistent with an earlier judgment relating to the same issue of a court having jurisdiction over the matter; | ||
v) | the foreign judgment does not require the Company to perform an act which would be illegal in the country of performance; and | ||
(v) | the foreign proceedings were not of a revenue or penal nature. |
5.9 | No stamp duty or registration or similar tax is payable under English law in connection with the parties entering into the Agreement or the Notes. |
6 | Qualifications |
This opinion is subject to the following qualifications: | |||
6.1 | This opinion is subject to any limitations arising from bankruptcy, insolvency, liquidation, moratorium, reorganisation and other laws of general application relating to or affecting the rights of creditors. | ||
6.2 | The enforcement in England of the Agreement, the Notes and of foreign judgments will be subject to English rules of civil procedure. | ||
6.3 | In England, remedies such as specific performance and injunction may not be available. | ||
6.4 | An English court may not give effect to Section 8.04(Expenses; Indemnity; Damage Waiver)of the Agreement in respect of the costs of litigation brought before an English court. | ||
6.5 | A certificate, determination, notification, opinion or the like might be held by the English courts not to be conclusive, final or binding if it could be shown to have an unreasonable or arbitrary basis or in the event of manifest error despite any provision in the Agreement to the contrary. | ||
6.6 | We do not express any opinion as to any taxation matters, except for paragraphs 5.9. | ||
6.7 | Claims may become barred under the Limitation Act 1980. | ||
6.8 | So far as they relate to United Kingdom stamp duties, the undertakings and indemnities given by the Company in Section 2.15(Taxes)of the Agreement may be void under Section 117 of the Stamp Act 1891. |
6.9 | Any provision of the Agreement which constitutes, or purports to constitute, a restriction on the exercise of any statutory power may be ineffective. | ||
6.10 | Our opinion that the Company is existing is based on the Search and the Telephone Search. It should be noted that the Search and the Telephone Search are not capable of revealing conclusively whether or not a winding-up or administration petition or order has been presented or made, a receiver appointed, a company voluntary arrangement proposed or approved or any other insolvency proceeding commenced. | ||
6.11 | If proceedings were brought before the English courts, effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of a contract have to be or have been performed, in so far as those provisions render the performance of the contract unlawful. In such circumstances, the relevant obligations may not be enforceable. | ||
6.12 | Further circumstances referred to in paragraph 5.7 are as follows: |
(a) | where all other elements relevant to the Agreement at the time of the choice are located in: |
(i) | a country other than the United States, it is possible that the choice of New York law will not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement; | ||
(ii) | one or more EU Member States, it is possible that the choice of New York law will not prejudice the application of provisions of EU law (where appropriate, as implemented in England) which cannot be derogated from by agreement; |
(b) | the English courts may have regard to the law of the country in which performance takes place in relation to the manner of performance and the steps to be taken in the event of defective performance; and | ||
(c) | the English courts may not be restricted from applying overriding mandatory provisions of English law and if there is a provision of New York law that is manifestly incompatible with English public policy, it is possible that the English courts may not apply it. |
7 | Reliance | |
This opinion is solely for your benefit and solely for the purpose of the Agreement and the Notes. It is not to be transmitted to anyone else nor is it to be relied upon by anyone else or for any other purpose or quoted or referred to in any public document or filed with anyone without our written consent, except as otherwise required by law or regulation, and provided that a copy may be provided to your professional advisers, auditors and regulators, solely for the purpose of the Agreement and the Notes and of giving their opinion and subject to the same restrictions. |
Page 2 of 5
FORM OF OPINION OF BERMUDA COUNSEL FOR THE PARENT
The Administrative Agent and | e-mail: | |
The Lenders from time to time party to the Agreement (as defined below) | gchamberlain@applebyglobal.com direct dial: | |
c/o Bank of America, N.A. 101 N Tryon Street Charlotte NC 28255-0001 | Tel+1 441 298 3589 Fax+1 441 298 3491 your ref: | |
appleby ref: | ||
137506.17 | ||
24 May 2010 |
(i) | the Agreement; and | ||
(ii) | the Parent Guaranty, |
(a) | the authenticity, accuracy and completeness of all Documents and other documentation examined by us submitted to us as originals and the conformity to authentic original documents of all Documents and other such documentation submitted to us as certified, conformed, notarised, faxed or photostatic copies; | |
(b) | that each of the Documents and other such documentation which was received by electronic means is complete, intact and in conformity with the transmission as sent; | |
(c) | the genuineness of all signatures on the Documents; | |
(d) | the authority, capacity and power of each of the persons signing the Documents (other than the Company in respect of the Subject Agreements); | |
(e) | that any representation, warranty or statement of fact or law, other than as to the laws of Bermuda, made in any of the Documents is true, accurate and complete; | |
(f) | that the Subject Agreements constitute the legal, valid and binding obligations of each of the parties thereto, other than the Company, under the laws of its jurisdiction of incorporation or its jurisdiction of formation; | |
(g) | that the Subject Agreements have been validly authorised, executed and delivered by each of the parties thereto, other than the Company, and the performance thereof is within the capacity and powers of each such party thereto, and that each such party to which the Company purportedly delivered the Subject Agreements has actually received and accepted delivery of such Subject Agreements; | |
(h) | that the Subject Agreements will effect, and will constitute legal, valid and binding obligations of each of the parties thereto, enforceable in accordance with their terms, under the laws of the State of New York by which they are expressed to be governed; |
Page 3
(i) | that the Subject Agreements are in the proper legal form to be admissible in evidence and enforced in the New York courts and in accordance with the laws of the State of New York; | |
(j) | that there are no provisions of the laws or regulations of any jurisdiction other than Bermuda which would be contravened by the execution or delivery of the Subject Agreements or which would have any implication in relation to the opinion expressed herein and that, in so far as any obligation under, or action to be taken under, the Subject Agreements is required to be performed or taken in any jurisdiction outside Bermuda, the performance of such obligation or the taking of such action will constitute a valid and binding obligation of each of the parties thereto under the laws of that jurisdiction and will not be illegal by virtue of the laws of that jurisdiction; | |
(k) | that none of the parties to the Subject Agreements maintains a place of business (as defined in section 4(6) of the Investment Business Act 2003), in Bermuda; | |
(l) | that the records which were the subject of the Company Search were complete and accurate at the time of such search and disclosed all information which is material for the purposes of this opinion and such information has not since the date of the Company Search been materially altered; | |
(m) | that the records which were the subject of the Litigation Search were complete and accurate at the time of such search and disclosed all information which is material for the purposes of this opinion and such information has not since the date of the Litigation Search been materially altered; | |
(n) | that the Resolutions are in full force and effect, have not been rescinded, either in whole or in part, and accurately record the resolutions passed by the Directors of the Company (the “Directors”) in a meeting which was duly convened and at which a duly constituted quorum was present and voting throughout (the “Board”) and that there is no matter affecting the authority of the Directors to effect entry by the Company into the Subject Agreements, not disclosed by the Constitutional Documents or the Resolutions, which would have any adverse implication in relation to the opinions expressed herein; |
Page 4
(o) | that the Administrative Agent and the Lenders from time to time party to the Agreement have no express or constructive knowledge of any circumstance whereby any Director of the Company, when the Board adopted the Resolutions, failed to discharge his fiduciary duty owed to the Company and to act honestly and in good faith with a view to the best interests of the Company; | |
(p) | that the Company has entered into its obligations under the Subject Agreements in good faith for the purpose of carrying on its business and that, at the time it did so, there were reasonable grounds for believing that the transactions contemplated by the Subject Agreements would benefit the Company; and | |
(q) | that each transaction to be entered into pursuant to the Subject Agreements is entered into in good faith and for full value and will not have the effect of preferring one creditor over another. |
(1) | The Company is an exempted company incorporated with limited liability and existing under the laws of Bermuda. The Company possesses the capacity to sue and be sued in its own name. | |
(2) | The Company has all requisite corporate power and authority to enter into, execute, deliver, and perform its obligations under the Subject Agreements and to take all action as may be necessary to complete the transactions contemplated thereby. | |
(3) | The execution, delivery and performance by the Company of the Subject Agreements and the transactions contemplated thereby have been duly authorised by all necessary corporate action on the part of the Company. | |
(4) | The Subject Agreements have been duly executed by the Company and each constitutes legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its terms. |
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(5) | No consent, licence or authorisation of, filing with, or other act by or in respect of, any governmental authority or court of Bermuda is required to be obtained by the Company in connection with the execution, delivery or performance by the Company of the Subject Agreements or to ensure the legality, validity, admissibility into evidence or enforceability as to the Company, of the Subject Agreements. | |
(6) | The execution, delivery and performance by the Company of the Subject Agreements and the transactions contemplated thereby do not and will not violate, conflict with or constitute a default under (i) any requirement of any law or any regulation of Bermuda or (ii) the Constitutional Documents. | |
(7) | The choice of the laws of the State of New York as the proper law to govern the Subject Agreements is a valid choice of law under Bermuda law and such choice of law would be recognised, upheld and applied by the courts of Bermuda as the proper law of the Subject Agreements in proceedings brought before them in relation to the Subject Agreements, provided that (i) the point is specifically pleaded; (ii) such choice of law is valid and binding under the laws of the State of New York; and (iii) recognition would not be contrary to public policy as that term is understood under Bermuda law. | |
It is our view that public policy in Bermuda is a common law principle amounting to a judicial impression of what is or is not in the general public interest or in accordance with the policies of the government of Bermuda as expressed primarily through legislation. While the concept is amorphous and subject to evolution, and application of this principle to specific circumstances cannot be accomplished with any degree of precision, we have no basis for concluding that any of the provisions in the Subject Agreements are contrary to public policy in Bermuda. | ||
(8) | The submission by the Company to the jurisdiction of a United States Federal court sitting in New York City or a New York State court pursuant to the Subject Agreements is not contrary to Bermuda law and would be recognised by the courts of Bermuda as a legal, valid and binding submission to the jurisdiction of a United States Federal court sitting in New York City or a New York State court, if such submission is accepted by such courts and is legal, valid and binding under the laws of the State of New York. |
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(9) | A final and conclusive judgment of a competent foreign court against the Company based upon the Subject Agreements (other than a court of jurisdiction to which The Judgments (Reciprocal Enforcement) Act 1958 applies, and it does not apply to a United States Federal court sitting in New York City or a New York State court) under which a sum of money is payable (not being a sum payable in respect of taxes or other charges of a like nature, in respect of a fine or other penalty, or in respect of multiple damages as defined in The Protection of Trading Interests Act 1981) may be the subject of enforcement proceedings in the Supreme Court of Bermuda under the common law doctrine of obligation by action on the debt evidenced by the judgment of such competent foreign court. A final opinion as to the availability of this remedy should be sought when the facts surrounding the foreign court’s judgment are known, but, on general principles, we would expect such proceedings to be successful provided that: |
(i) | the court which gave the judgment was competent to hear the action in accordance with private international law principles as applied in Bermuda; and | ||
(ii) | the judgment is not contrary to public policy in Bermuda, has not been obtained by fraud or in proceedings contrary to natural justice and is not based on an error in Bermuda law. |
Enforcement of such a judgment against assets in Bermuda may involve the conversion of the judgment debt into Bermuda dollars, but the Bermuda Monetary Authority has indicated that its present policy is to give the consents necessary to enable recovery in the currency of the obligation. | ||
No stamp duty or similar or other tax or duty is payable in Bermuda on the enforcement of a foreign judgment. Court fees will be payable in connection with proceedings for enforcement. | ||
(10) | Based solely upon the Company Search and the Litigation Search: |
(i) | no litigation, administrative or other proceeding of or before any governmental authority of Bermuda is pending against the Company; and | ||
(ii) | no notice to the Registrar of Companies of the passing of a resolution of members or creditors to wind up or the appointment of a liquidator or |
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receiver has been given. No petition to wind up the Company or application to reorganise its affairs pursuant to a Scheme of Arrangement or application for the appointment of a receiver has been filed with the Supreme Court. |
(11) | The Company has received an assurance from the Ministry of Finance granting an exemption, until 28 March 2016, from the imposition of tax under any applicable Bermuda law computed on profits or income or computed on any capital asset, gain or appreciation, or any tax in the nature of estate duty or inheritance tax, provided that such exemption shall not prevent the application of any such tax or duty to such persons as are ordinarily resident in Bermuda and shall not prevent the application of any tax payable in accordance with the provisions of the Land Tax Act 1967 or otherwise payable in relation to land in Bermuda leased to the Company. There are, subject as otherwise provided in this opinion, no Bermuda taxes, stamp or documentary taxes, duties or similar charges now due, or which could in the future become due, in connection with the execution, delivery, performance or enforcement of the Subject Agreements or the transactions contemplated thereby, or in connection with the admissibility in evidence thereof and the Company is not required by any Bermuda law or regulation to make any deductions or withholdings in Bermuda from any payment it may make thereunder. |
(a) | The term “enforceable” as used in this opinion means that there is a way of ensuring that each party performs an agreement or that there are remedies available for breach. | |
(b) | We express no opinion as to the availability of equitable remedies such as specific performance or injunctive relief, or as to any matters which are within the discretion of the courts of Bermuda in respect of any obligations of the Company as set out in the Subject Agreements. In particular, we express no opinion as to the enforceability of any present or future waiver of any provision of law (whether substantive or procedural) or of any right or remedy which might otherwise be available presently or in the future under the Subject Agreements. |
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(c) | Enforcement of the obligations of the Company under the Subject Agreements may be limited or affected by applicable laws from time to time in effect relating to bankruptcy, insolvency or liquidation or any other laws or other legal procedures affecting generally the enforcement of creditors’ rights. | |
(d) | Enforcement of the obligations of the Company may be the subject of a statutory limitation of the time within which such proceedings may be brought. | |
(e) | We express no opinion as to any law other than Bermuda law and none of the opinions expressed herein relates to compliance with or matters governed by the laws of any jurisdiction except Bermuda. This opinion is limited to Bermuda law as applied by the Courts of Bermuda at the date hereof. | |
(f) | Where an obligation is to be performed in a jurisdiction other than Bermuda, the courts of Bermuda may refuse to enforce it to the extent that such performance would be illegal under the laws of, or contrary to public policy of, such other jurisdiction. | |
(g) | We express no opinion as to the validity, binding effect or enforceability of any provision incorporated into any of the Subject Agreements by reference to a law other than that of Bermuda, or as to the availability in Bermuda of remedies which are available in other jurisdictions. | |
(h) | Where a person is vested with a discretion or may determine a matter in his or its opinion, such discretion may have to be exercised reasonably or such an opinion may have to be based on reasonable grounds. | |
(i) | Any provision in the Subject Agreements that certain calculations or certificates will be conclusive and binding will not be effective if such calculations or certificates are fraudulent or erroneous on their face and will not necessarily prevent juridical enquiries into the merits of any claim by an aggrieved party. | |
(j) | We express no opinion as to the validity or binding effect of any provision in the Subject Agreements for the payment of interest at a higher rate on overdue amounts than on amounts which are current, or that liquidated damages are or may be payable. Such a provision may not be enforceable if it could be established that the amount expressed as being payable was in the nature of a penalty; that is |
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to say a requirement for a stipulated sum to be paid irrespective of, or necessarily greater than, the loss likely to be sustained. If it cannot be demonstrated to the Bermuda court that the higher payment was a reasonable pre-estimate of the loss suffered, the court will determine and award what it considers to be reasonable damages. Section 9 of The Interest and Credit Charges (Regulations) Act 1975 provides that the Bermuda courts have discretion as to the amount of interest, if any, payable on the amount of a judgment after date of judgment. If the Court does not exercise that discretion, then interest will accrue at the statutory rate which is currently 7% per annum. | ||
(k) | We express no opinion as to the validity or binding effect of any provision of the Subject Agreements which provides for the severance of illegal, invalid or unenforceable provisions. | |
(l) | A Bermuda court may refuse to give effect to any provisions of the Subject Agreements in respect of costs of unsuccessful litigation brought before the Bermuda court or where that court has itself made an order for costs. | |
(m) | Searches of the Register of Companies at the office of the Registrar of Companies and of the Supreme Court Causes Book at the Registry of the Supreme Court are not conclusive and it should be noted that the Register of Companies and the Supreme Court Causes Book do not reveal: |
(i) | details of matters which have been lodged for filing or registration which as a matter of best practice of the Registrar of Companies or the Registry of the Supreme Court would have or should have been disclosed on the public file, the Causes Book or the Judgment Book, as the case may be, but for whatever reason have not actually been filed or registered or are not disclosed or which, notwithstanding filing or registration, at the date and time the search is concluded are for whatever reason not disclosed or do not appear on the public file, the Causes Book or Judgment Book; | ||
(ii) | details of matters which should have been lodged for filing or registration at the Registrar of Companies or the Registry of the Supreme Court but have not been lodged for filing or registration at the date the search is concluded; |
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(iii) | whether an application to the Supreme Court for a winding-up petition or for the appointment of a receiver or manager has been prepared but not yet been presented or has been presented but does not appear in the Causes Book at the date and time the search is concluded; | ||
(iv) | whether any arbitration or administrative proceedings are pending or whether any proceedings are threatened, or whether any arbitrator has been appointed; or | ||
(v) | whether a receiver or manager has been appointed privately pursuant to the provisions of a debenture or other security, unless notice of the fact has been entered in the Register of Charges in accordance with the provisions of the Act. |
Furthermore, in the absence of a statutorily defined system for the registration of charges created by companies incorporated outside Bermuda (“overseas companies”) over their assets located in Bermuda, it is not possible to determine definitively from searches of the Register of Charges maintained by the Registrar of Companies in respect of such overseas companies what charges have been registered over any of their assets located in Bermuda or whether any one charge has priority over any other charge over such assets. | ||
(n) | In order to issue this opinion we have carried out the Company Search and have not enquired as to whether there has been any change since the date of such search. | |
(o) | In order to issue this opinion we have carried out the Litigation Search and have not enquired as to whether there has been any change since the date of such search. |
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1. | The entries and filings shown in respect of the Company on the file of the Company maintained in the Register of Companies at the office of the Registrar of Companies in Hamilton, Bermuda, as revealed by a search conducted on 21 May 2010 (the “Company Search”). | |
2. | The entries and filings shown in respect of the Company in the Supreme Court Causes Book maintained at the Registry of the Supreme Court in Hamilton, Bermuda, as revealed by a search conducted on 21 May 2010 (the “Litigation Search”). | |
3. | Certified copies of the Certificate of Incorporation, Memorandum of Association and Bye-Laws adopted by written resolution dated 3 December 2007 for the Company (collectively referred to as the “Constitutional Documents”). | |
4. | Certificate of the Assistant Secretary, dated 21 May 2010, issued by Robert H. Rigsby, Assistant Secretary of the Company, certifying a true and correct copy of an exerpt from the meeting of the Board of Directors of the Company on 17 May 2010 approving the “upsizing” of the Company’s contemplated new credit facility to US$1.25 billion at closing and a Certificate of the Assistant Secretary, dated 24 May 2010, issued by Robert H. Rigsby, Assistant Secretary of the Company, certifying,inter alia¸the resolutions of the Board of Directors of the Company passed on 17 May 2010 (together, the “Resolutions”). | |
5. | A certified copy of the “Foreign Exchange Letter”, dated 12 September 2007, issued by the Bermuda Monetary Authority, Hamilton Bermuda in relation to the Company. | |
6. | A certified copy of the “Tax Assurance”, dated 14 November 2007, issued by the Registrar of Companies for the Minister of Finance in relation to the Company. | |
7. | A certified copy of the Register of Directors and Officers in respect of the Company. | |
8. | Electronic copy of the executed Agreement dated 24 May 2010. |
9. | Electronic copy of the executed Parent Guaranty dated 24 May 2010. |
Page 2
FORM OF COMPLIANCE CERTIFICATE
To: | Bank of America, N.A., as Administrative Agent |
INVESCO LTD. | ||||
By: | ||||
Name: | ||||
Title: |
Page 2
to the Compliance Certificate
($ in 000’s)
I. | Section 5.03(a) — Debt/EBITDA Ratio. | |||||||||
A. | Adjusted Debtless excluded items as of Statement Date: | |||||||||
1. | Adjusted Debt: | $ | ||||||||
2. | Subsidiary Non-Recourse Debt: | $ | ||||||||
3. | Liabilities with respect to the Office Equipment Sale and Leaseback Lease (so long as the Parent and its Subsidiaries own 100% of the Office Equipment Sale and Leaseback Bonds): | $ | ||||||||
4. | Qualified Equity Portion of Qualified Securities to the extent such amount is otherwise included in Adjusted Debt: | $ | ||||||||
[5. | The lesser of the aggregate outstanding principal amount of (x) the 2012 Notes and (y) 2012 Refinancing Notes, to the extent otherwise included in Adjusted Debt: | $ | ]1 | |||||||
[5. | The lesser of the aggregate outstanding principal amount of (x) the 2013 Notes and (y) 2013 Refinancing Notes, to the extent otherwise included in Adjusted Debt: | $ | ]2 | |||||||
[5][6]. | Adjusted Debt less excluded items for purposes of computing the Debt/EBITDA Ratio (Lines I.A.1 – 2 – 3 – 4[– 5]): | $ | ||||||||
B. | EBITDAless excluded items for four consecutive fiscal quarters ending on above date (“Subject Period”): | |||||||||
1. | Net income of the Parent and its Subsidiaries, on a consolidated basis, excluding consolidated investment products, for Subject Period: | $ | ||||||||
2. | Interest expense for Subject Period: | $ | ||||||||
1 | Included for the purpose of calculating the Debt/EBITDA ratio for the period of four consecutive quarters ending on March 31, 2012 in the event that either the Borrower or any Guarantor has issued the 2012 Refinancing Notes in connection with a refinancing of the 2012 Notes. | |
2 | Included for the purpose of calculating the Debt/EBITDA ratio for the period of four consecutive quarters ending on December 31, 2012 in the event that either the Borrower or any Guarantor has issued the 2013 Refinancing Notes in connection with a refinancing of the 2013 Notes. |
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3. | Income tax expense for Subject Period: | $ | ||||||||
4. | Depreciation expense for Subject Period: | $ | ||||||||
5. | Amortization expense for Subject Period: | $ | ||||||||
6. | Extraordinary losses for Subject Period: | $ | ||||||||
7. | Exceptional losses for Subject Period: | $ | ||||||||
8. | Non-cash charges exclusive of any non-cash charge to the extent it represents a reserve for cash expenditures in any future period for Subject Period: | $ | ||||||||
9. | Extraordinary gains for Subject Period: | $ | ||||||||
10. | Exceptional gains for Subject Period: | $ | ||||||||
11. | Non-cash gains exclusive of gains for which the Parent expects cash proceeds in a future period for Subject Period: | $ | ||||||||
12. | EBITDA (Lines I.B.1 + 2 + 3 + 4 + 5 + 6 + 7 + 8 – 9 – 10 – 11): | $ | ||||||||
13. | Portion of EBITDA attributable to the net income, expenses, losses, charges and gains of each Special Purpose Subsidiary: | $ | ||||||||
14. | EBITDAless excluded items for purposes of computing the Financial Covenants for Subject Period (Lines I.B.12 – 13): | $ | ||||||||
C. | Debt/EBITDA Ratio as of the Statement Date (Line I.A.6 ÷ Line I.B.14): | to 1.00 | ||||||||
Maximum | ||||
Four Fiscal Quarters Ending | Debt/EBITDA Ratio | |||
Effective Date through December 31, 2011 | 3.25 to 1.00 | |||
Each fiscal quarter ending thereafter | 3.00 to 1.00 |
II. | Section 5.03(b) — Coverage Ratio. | |||||||||
A. | EBITDAless excluded items for purposes of computing the Financial Covenants for Subject Period (Line I.B.14): | $ | ||||||||
B. | Interest payable on, and amortization of debt discount in respect of, Adjusted Debt (excluding from Adjusted Debt |
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for purposes of computing this amount: (i) Subsidiary Non-Recourse Debt and (ii) so long as the Parent and its Subsidiaries own 100% of the Office Equipment Sale and Leaseback Bonds, liabilities with respect to the Office Equipment Sale and Leaseback Lease): | $ | |||||||||
C. | Coverage Ratio as of the Statement Date as of the Statement Date (Line II.A ÷ Line II.B): | to 1.00 | ||||||||
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FORM OF U.K. TAX COMPLIANCE CERTIFICATE
[NAME OF LENDER] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Address: [ ] [ ] [ ] | ||||
I-1
Form of U.K. Tax Compliance Certificate