For the avoidance of doubt, this document is a non-binding recommended form. Its intention is to be used as a starting point for negotiation only. Individual parties are free to depart from its terms and should always satisfy themselves of the regulatory implications of its use. LMA MANDATE LETTER JOINT ARRANGERS - BEST EFFORTS [Mandated Lead Arrangers' Logos/Headed Notepaper] To: [Name of Company] (the "Company") [Address] For the attention of: [Date] Dear Sirs, [Insert base currency/amount/description of the facility/ies] (the "Facility/ies") We [ ] and [ ] (the "Mandated Lead Arrangers") and [ ] and [ ] (the "Bookrunners") are pleased to set out in this letter the terms and conditions on which we are willing to use our best efforts to arrange and manage the primary syndication of the Facility/ies. Nothing in this letter constitutes a commitment by any of the Mandated Lead Arrangers, the Bookrunners nor any of their respective Affiliates to provide any financing. In this letter: "Affiliate" means in relation to a person, a subsidiary or holding company of that person, a subsidiary of any such holding company and, where such term is used in paragraph 11 (No Front-running) only, each of the directors, officers and employees of that person or of any such subsidiary or holding company (including any sales and trading teams). "Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in [ ]. "close of Syndication" means the time the Bookrunners close Syndication. "Facility Documents" means a facility/ies agreement and related documentation (based on the terms set out in the Term Sheet and this letter) in form and substance satisfactory to the Mandated Lead Arrangers and Bookrunners. "Fee Letter" means any fee letter between any of the Mandated Lead Arrangers, the Bookrunners and/or the Agent [and/or the Swingline Agent] and the Company dated on or about the date of this letter. "Free to Trade Time" means the time the Bookrunners notify the Syndication Lenders of their final allocations in the Facility/ies.
"Majority Bookrunners" means [ ]. 1 "Mandate Documents" means this letter, the Term Sheet and any Fee Letter. "Syndication" means the primary syndication of the Facility/ies. "Syndication Lenders" means the parties participating as Lenders in Syndication. "Term Sheet" means the term sheet attached to this letter as an appendix. Unless a contrary indication appears, a term defined in any Mandate Document has the same meaning when used in this letter. 1. Appointment 1.1 The Company appoints: (d) (e) the Mandated Lead Arrangers as exclusive arrangers of the Facility/ies; the Bookrunners as exclusive bookrunners in connection with Syndication; [ ] as documentation agent in connection with the Facility/ies; [and] [ ] as facility agent in connection with the Facility/ies; [and [ ] as swingline agent in connection with the Facility/ies]. 1.2 Until this mandate terminates in accordance with paragraph 16 (Termination): no other person shall be appointed as mandated lead arranger, bookrunner, documentation agent, facility agent [or swingline agent]; no other titles shall be awarded; and except as provided in the Mandate Documents, no other compensation shall be paid to any person, in connection with the Facility/ies [without the prior written consent of each of the Mandated Lead Arrangers]. 2. Conditions 2.1 This offer to use our best efforts to arrange and manage the primary syndication of the Facility/ies is made on the terms of the Mandate Documents and is subject to satisfaction of the following conditions: compliance by the Company with all the terms of each Mandate Document; the conditions set out in paragraph 3 (Material Adverse Change); 1 Users need to consider if this should be by reference to a simple majority or to some reference to intended hold amount, bearing in mind the Bookrunner, in its capacity as such, will not have an intended hold amount.
(d) (e) (f) (g) (h) (i) (j) each of the representations and warranties made by the Company or any other member of the Group in connection with the transaction contemplated in the Mandate Documents (including, but not limited to, those set out in paragraph 9 (Information)) being correct; the preparation, execution and delivery of the Facility Documents [by no later than [ ] or any later date agreed between the Company and each of the Mandated Lead Arrangers]; completion by each of the Mandated Lead Arrangers of client identification procedures (including, if necessary, identification of directors and major shareholders of the [Company]/[Borrower]/[other Obligors]) in compliance with applicable money laundering rules; each of the Mandated Lead Arrangers obtaining credit committee and all other relevant internal approvals with respect to the Company, the Group and the Facility/ies; [no public offer in respect of the shares of the Company [or a merger by the Company and another person] being announced and no person or group of persons acting in concert gaining control of the Company;] [completion of [legal, regulatory and financial] 2, due diligence in respect of the Company and the Group, the results being in all respects satisfactory to each of the Mandated Lead Arrangers;] [Moody's]/[S&P]/[Fitch] indicating on terms and assumptions satisfactory to each of the Mandated Lead Arrangers that the Company['s long-term senior unsecured debt which is not credit enhanced] will have a [long-term credit] rating of at least [ ] and [ ] respectively;] [and] the Company and all other Obligors obtaining all necessary regulatory approvals in connection with the Facility/ies from any relevant authorities in any relevant jurisdictions. 2.2 [Subject to the conditions set out in this letter and without any commitment to underwrite any part of the Facility/ies, each Mandated Lead Arranger (whether itself or through an Affiliate) intends to hold the following amount of the Facility/ies specified opposite its name below: Mandated Lead Arranger Intended Hold Amount [ ] [ ] [ ] [ ] 2 Consider whether "accounting", "tax", "technical", "insurance", "industry", "business", "pensions", "environmental" or other due diligence is relevant.
Such intention is subject to the Facility/ies being [fully subscribed] [subscribed in a minimum amount of [ ]]. 3 2.3 The obligations of the Mandated Lead Arrangers and the Bookrunners under the Mandate Documents are several. No Mandated Lead Arranger is responsible for the obligations of [the]/[any] other Mandated Lead Arranger. No Bookrunner is responsible for the obligations of [the]/[any] other Bookrunner. 3. Material Adverse Change The obligations of each Mandated Lead Arranger and each Bookrunner under the Mandate Documents are subject to the absence, in its opinion, of any event(s) or circumstance(s) (including any material adverse change or the continuation of any circumstance(s)) which, in its opinion, has (have) adversely affected or could adversely affect: the business, condition (financial or otherwise), operations, performance, assets or prospects of [any Obligor/the Group] since the date as at which [its latest /the latest consolidated] audited financial statements were prepared; [ the ability of the Company or any other Obligor to perform its obligations under any Mandate Document or Facility Document;] or the international or any relevant domestic syndicated loan [,debt, bank, capital or equity] 4 market(s) 5 [which in the opinion of the relevant Bookrunner could prejudice Syndication], during the period from the date of [this letter/the Term Sheet] to the date of signing of the Facility Documents. 4. Clear Market 4.1 During the period from the date of [this letter/the Term Sheet] to the date, following close of Syndication, on which all the Syndication Lenders become party to the Facility Documents, the Company shall not and shall ensure that no other member of the Group shall announce, enter into discussions to raise, raise or attempt to raise any other finance in the international or any relevant domestic syndicated loan [,debt, bank, capital or equity] market(s) (including, but not limited to, any bilateral or syndicated facility, bond 3 4 5 Consider inserting. Refer specifically to material adverse change in the capital markets and equity markets if the debt financing relies on refinancing in the capital or equity markets Transactions in emerging markets or involving a sovereign borrower should refer to material adverse change in the market or economic conditions of the relevant jurisdiction or in the ability of persons within that jurisdiction to continue to access the international loan market. Amend paragraph and insert a new paragraph (d) "the market or economic conditions of [insert country of incorporation of the Company or country where principal assets of the Company are located]" and a new paragraph (e) " the ability of persons incorporated in and/or operating out of [insert country of incorporation of the Company or country where principal assets of the Company are located] to raise finance in the international syndicated loan [,debt, bank, capital or equity] market(s)"
or note issuance or private placement) [without the prior written consent of each of the Mandated Lead Arrangers and each of the Bookrunners]. 4.2 [Paragraph 4.1 does not apply to: the Facility/ies; any commercial paper issued under a programme existing on the date of this letter and notified in writing to each of the Mandated Lead Arrangers and each of the Bookrunners prior to the date of this letter; or the renewal of any existing bilateral facility with the same lender, on substantially the same terms and for the same or a smaller amount.] 5. Market Flex 6 5.1 During the period from the date of [this letter/the Term Sheet] to the date, following close of Syndication, on which all the Syndication Lenders become party to the Facility Documents, the Majority Bookrunners shall be entitled, after consultation with the Mandated Lead Arrangers [and the Company] [for a maximum period of [ ] days], to change the pricing, terms and/or structure [(but not the total amount)] of the Facility/ies if the Majority Bookrunners determine that such changes are advisable in order to enhance the prospects of a successful Syndication. 5.2 The Company agrees to, and shall ensure that each other Obligor shall, act promptly to amend the Facility Documents to reflect any changes made under paragraph 5.1. 5.3 For the purposes of this paragraph 5, "successful Syndication" means [the Facility/ies is/are subscribed in a minimum amount of [ ]]. 6. Fees, Costs and Expenses 6.1 All fees shall be paid [in accordance with the Fee Letter(s) or] as set out in the Term Sheet. 6.2 The Company shall promptly on demand pay the Agent, the Mandated Lead Arrangers and the Bookrunners the amount of all costs and expenses (including legal fees) reasonably incurred by any of them in connection with: the negotiation, preparation, printing and execution of the Facility Documents and the Mandate Documents; and the Syndication, whether or not the Facility Documents are signed. 6 Consider whether it is appropriate to retain this provision
7. Payments All payments to be made under the Mandate Documents: shall be paid in the currency of invoice and in immediately available, freely transferable cleared funds to such account(s) with such bank(s) as the Mandated Lead Arrangers, the Agent or the Bookrunners (as applicable) notify to the Company; shall be paid without any deduction or withholding for or on account of tax (a "Tax Deduction") unless a Tax Deduction is required by law. If a Tax Deduction is required by law to be made, the amount of the payment due shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required; and are exclusive of any value added tax or similar charge ("VAT"). If VAT is chargeable, the Company shall also and at the same time pay to the recipient of the relevant payment an amount equal to the amount of the VAT. 8. Syndication 8.1 The Bookrunners shall, in consultation with the Company and the Mandated Lead Arrangers, manage all aspects of the Syndication including timing, the selection of potential Lenders, the acceptance and allocation of participations and the amount and distribution of fees to Lenders. Subject to any applicable confidentiality agreement between the Company and the Bookrunners 7, the Company authorises the Bookrunners to discuss the terms of the Facility/ies with, and to disclose those terms to, potential Lenders to facilitate the Syndication. 8.2 The Company shall, and shall ensure that the other members of the Group will, give any assistance which the Mandated Lead Arrangers reasonably require in relation to Syndication including, but not limited to: the preparation, with the assistance of the Mandated Lead Arrangers, of an information memorandum containing all relevant information (including projections) including, but not limited to, information about the Group and how the proceeds of the Facility/ies will be applied (the "Information Memorandum"). The Company shall approve the Information Memorandum before the Mandated Lead Arrangers distribute it to potential Lenders on the Company's behalf; providing any information reasonably requested by the Mandated Lead Arrangers or potential Lenders in connection with Syndication; 7 It is assumed that the terms of any such confidentiality agreement will provide a framework which permits the Bookrunners to disclose information about the Company and/or the Facility/ies to potential Lenders. Note that the LMA does not publish a recommended form of any such confidentiality agreement.
(d) (e) (f) making available the senior management and representatives of the Company and other members of the Group for the purposes of giving presentations to, and participating in meetings with, potential Lenders at such times and places as the Mandated Lead Arrangers may reasonably request; using best efforts to ensure that Syndication benefits from the Group's existing lending relationships; [agreeing to such shorter Interest Periods during the Syndication process as are necessary for the purposes of Syndication;] 8 [and] [entering into a syndication agreement in a form to be agreed between the Mandated Lead Arrangers, the relevant Syndication Lenders and the Company.] 9. Information 9.1 The Company represents and warrants that: any factual information provided to the Mandated Lead Arrangers or the Bookrunners by or on behalf of it or any other member of the Group (including for the purposes of preparing the Information Memorandum) (the "Information") is true and accurate in all material respects as at the date it is provided or as at the date (if any) at which it is stated; nothing has occurred or been omitted and no information has been given or withheld that results in the Information being untrue or misleading in any material respect; and any financial projections contained in the Information have been prepared in good faith on the basis of recent historical information and on the basis of reasonable assumptions. 9.2 The representations and warranties set out in paragraph 9.1 are deemed to be made by the Company daily by reference to the facts and circumstances then existing commencing on the date of this letter and continuing until the date the Facility Documents are signed. 9.3 The Company shall immediately notify the Mandated Lead Arrangers and the Bookrunners in writing if any representation and warranty set out in paragraph 9.1 is incorrect or misleading and agrees to supplement the Information promptly from time to time to ensure that each such representation and warranty is correct when made. 9.4 The Company acknowledges that the Mandated Lead Arrangers and the Bookrunners will be relying on the Information without carrying out any independent verification. 10. Indemnity 10.1 8 Only required if close of primary syndication is to occur after signing of the Facility Documents.
Whether or not the Facility Documents are signed, the Company shall within [three] Business Days of demand indemnify each Indemnified Person against any cost, expense, loss or liability (including without limitation legal fees) incurred by or awarded against that Indemnified Person in each case arising out of or in connection with any action, claim, investigation or proceeding commenced or threatened (including, without limitation, any action, claim, investigation or proceeding to preserve or enforce rights) in relation to: (i) (ii) (iii) the use of the proceeds of the Facility/ies; any Mandate Document or any Facility Document; and/or the arranging of the Facility/ies. The Company will not be liable under paragraph above for any cost, expense, loss or liability (including without limitation legal fees) incurred by or awarded against an Indemnified Person if that cost, expense, loss or liability results [directly] from any breach by that Indemnified Person of any Mandate Document or any Facility Document which is in each case finally judicially determined to have resulted [directly] from the gross negligence or wilful misconduct of that Indemnified Person. For the purposes of this paragraph 10: "Indemnified Person" means each Mandated Lead Arranger, each Bookrunner, the Agent, [the Swingline Agent,] each Lender, in each case, any of their respective Affiliates and each of their (or their respective Affiliates') respective directors, officers, employees and agents. 10.2 No Mandated Lead Arranger or Bookrunner shall have any duty or obligation, whether as fiduciary for any Indemnified Person or otherwise, to recover any payment made or required to be made under paragraph 10.1. 10.3 [The Company agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company or any of its Affiliates for or in connection with anything referred to in paragraph 10.1 above except, following the Company's agreement to the Mandate Documents, for any such cost, expense, loss or liability incurred by the Company that results [directly] from any breach by that Indemnified Person of any Mandate Document or any Facility Document which is in each case finally judicially determined to have resulted [directly] from the gross negligence or wilful misconduct of that Indemnified Person. Notwithstanding paragraph above, no Indemnified Person shall be responsible or have any liability to the Company or any of its Affiliates or anyone else for consequential losses or damages.
The Company represents to the Mandated Lead Arrangers and the Bookrunners that: (i) (ii) (iii) (iv) it is acting for its own account and it has made its own independent decisions to enter into the transaction contemplated in the Mandate Documents (the "Transaction") and as to whether the Transaction is appropriate or proper for it based upon its own judgement and upon advice from such advisers as it has deemed necessary; it is not relying on any communication (written or oral) from any or all of the Mandated Lead Arrangers or Bookrunners as investment advice or as a recommendation to enter into the Transaction, it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction. No communication (written or oral) received from any or all of the Mandated Lead Arrangers or Bookrunners shall be deemed to be an assurance or guarantee as to the expected results of the Transaction; it is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction. It is also capable of assuming, and assumes, the risks of the Transaction; and no Mandated Lead Arranger or Bookrunner is acting as a fiduciary for [or as an adviser to] it in connection with the Transaction. 10.4 The Contracts (Rights of Third Parties) Act 1999 shall apply to this paragraph 10 but only for the benefit of the other Indemnified Persons, subject always to the terms of paragraphs 19.2 and 21 (Governing Law and Jurisdiction). 11. No Front-running Each of the Mandated Lead Arrangers and Bookrunners agrees and acknowledges that: (d) it shall not, and shall procure that none of its Affiliates shall, engage in any Front Running; [if it or any of its Affiliates engages in any Front Running, the other Mandated Lead Arrangers and Bookrunners may suffer loss or damage [and its position in future financings with the other Mandated Lead Arrangers and Bookrunners and the Company may be prejudiced]]; if it or any of its Affiliates engages in any Front Running the other Mandated Lead Arrangers and Bookrunners retain the right not to allocate to it a participation under the Facility/ies; [it confirms that neither it nor any of its Affiliates has engaged in any Front Running.]
[When each of the Mandated Lead Arrangers and Bookrunners signs the Facility Documents and any transfer document under the Facility Documents (in the case of any transfer document, only if signed within [three/six] months after [the date of signing of the Facility Documents]/[the Free to Trade Time]), it shall, if the other Mandated Lead Arrangers and Bookrunners so request, confirm to them in writing that neither it nor any of its Affiliates has breached the terms of this paragraph 11.] [Any arrangement, front-end or similar fee which may be payable to a Mandated Lead Arranger or Bookrunner in connection with the Facility/ies is only payable on condition that neither it nor any of its Affiliates has breached the terms of this letter. This condition is in addition to any other conditions agreed between the Mandated Lead Arrangers and Bookrunners in relation to the entitlement of each Mandated Lead Arranger and Bookrunner to any such fee.] For the purposes of this paragraph 11: a "Facility Interest" means a legal, beneficial or economic interest acquired or to be acquired expressly and specifically in or in relation to the Facility/ies, whether as initial lender or by way of assignment, transfer, novation, sub-participation (whether disclosed, undisclosed, risk or funded) or any other similar method; "Confidential Information" means all information relating to the Company, any Obligor, the Group, [the Target Group,] 9 the Facility Documents and/or the Facilit[y/ies] which is provided to a Mandated Lead Arranger or Bookrunner (the "Receiving Party" in relation to the Facility Documents or Facilit[y/ies] by the Company, the Group or any of its affiliates or advisers (the "Providing Party"), in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that: is or becomes public information other than as a direct or indirect result of any breach by the Receiving Party of a confidentiality agreement to which that Receiving Party is party; or is identified in writing at the time of delivery as non-confidential by the Providing Party; or is known by the Receiving Party before the date the information is disclosed to the Receiving Party by the Providing Party or is lawfully obtained by the Receiving Party after that date, from a source which is, as far as the Receiving Party is aware, unconnected with the Group [or the Target Group] 10 and which, in either case, as far as the Receiving Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality. 11 9 For inclusion in LMA Leveraged Finance documentation only. 10 For inclusion in LMA Leveraged Finance documentation only. 11 No need to define Obligor or Target if they will be defined in the Term sheet.
"Front Running" means undertaking any of the following activities prior to the Free to Trade Time which is intended to or is reasonably likely to encourage any person to take a Facility Interest except as a Syndication Lender: communication with any person or the disclosure of any information to any person in relation to a Facility Interest; [or] making a price (whether firm or indicative) with a view to buying or selling a Facility Interest; [or] [entering into (or agreeing to enter into) any agreement, option or other arrangement, whether legally binding or not, giving rise to the assumption of any risk or participation in any exposure in relation to a Facility Interest], excluding where any of the foregoing is: (i) (ii) made to or entered into with an Affiliate; or an act of a Mandated Lead Arranger (or its Affiliate) or Bookrunner (or its Affiliate) who is operating on the public side of an information barrier unless such person is acting on the instructions of a person who has received Confidential Information and is aware of the proposed Facility/ies. ["Target Group" means the Target and its subsidiaries (as such term is defined in the Companies Act 2006).] 12 This paragraph 11 is for the benefit of the Mandated Lead Arrangers and Bookrunners only. 12. Confidentiality The Company acknowledges that the Mandate Documents are confidential and the Company shall not, and shall ensure that no other member of the Group shall, without the prior written consent of each of the Mandated Lead Arrangers and Bookrunners disclose the Mandate Documents or their contents to any other person except: as required by law or by any applicable governmental or other regulatory authority [or by any applicable stock exchange]; and to its employees or professional advisers for the purposes of the Facility/ies who have been made aware of and agree to be bound by the obligations under this paragraph or are in any event subject to confidentiality obligations as a matter of law or professional practice. 13. Publicity/Announcements 13.1 All publicity in connection with the Facility/ies shall be managed by the Mandated Lead Arrangers in consultation with the Company. 12 For inclusion in LMA Leveraged Finance documentation only.
13.2 [No announcements regarding the Facility/ies or any roles as arranger, bookrunner, lender or agent shall be made without the prior written consent of the Company and each of the Mandated Lead Arrangers and Bookrunners]. 14. Conflicts 14.1 The Company and each Mandated Lead Arranger and Bookrunner acknowledges that the Mandated Lead Arrangers or their Affiliates and the Bookrunners or their Affiliates may provide debt financing, equity capital or other services to other persons with whom the Company or its Affiliates may have conflicting interests in respect of the Facility/ies in this or other transactions. 14.2 The Company and each Mandated Lead Arranger and Bookrunner acknowledges that the Mandated Lead Arrangers or their Affiliates and the Bookrunners or their Affiliates may act in more than one capacity in relation to this transaction and may have conflicting interests in respect of such different capacities. 14.3 The Mandated Lead Arrangers and Bookrunners shall not use confidential information obtained from the Company or its Affiliates for the purposes of the Facility/ies in connection with providing services to other persons or furnish such information to such other persons. 14.4 The Company acknowledges that the Mandated Lead Arrangers and Bookrunners have no obligation to use any information obtained from another source for the purposes of the Facility/ies or to furnish such information to the Company or its Affiliates. 15. Assignments The Company shall not assign any of its rights or transfer any of its rights or obligations under the Mandate Documents without the prior written consent of each of the Mandated Lead Arrangers and Bookrunners. 16. Termination 16.1 If the Company does not accept the offer made by each of the Mandated Lead Arrangers and Bookrunners in this letter before close of business in [London] on [ ], such offer shall terminate on that date. 16.2 Any Mandated Lead Arranger or Bookrunner may terminate its obligations under this letter with immediate effect by notifying the Company and the other Mandated Lead Arranger(s) and Bookrunner(s) if: in its opinion, any of the conditions set out in paragraph 2 (Conditions) is not satisfied; [or the Company fails or has failed to disclose to any of the Mandated Lead Arrangers or Bookrunners information which could be relevant to their decision to arrange or manage the primary syndication of the Facility/ies].
17. Survival 17.1 Except for paragraphs 2 (Conditions), 3 (Material Adverse Change) and 16 (Termination) the terms of this letter shall survive and continue after the Facility Documents are signed. 17.2 Without prejudice to paragraph 17.1, paragraphs 6 (Fees, Costs and Expenses), 7 (Payments), 10 (Indemnity), 12 (Confidentiality), 13 (Publicity/Announcements), 14 (Conflicts) and 16 (Termination) to 21 (Governing Law and Jurisdiction) inclusive shall survive and continue after any termination of the obligations of any Mandated Lead Arranger or Bookrunner under the Mandate Documents. 18. Entire Agreement 18.1 The Mandate Documents set out the entire agreement between the Company[,]/[and] the Mandated Lead Arrangers and the Bookrunners as to arranging and managing the primary syndication of the Facility/ies and supersede any prior oral and/or written understandings or arrangements relating to the Facility/ies. 18.2 Any provision of a Mandate Document may only be amended or waived in writing signed by the Company and each of the Mandated Lead Arrangers and Bookrunners. 19. Third Party Rights 19.1 Unless expressly provided to the contrary in this letter, a person who is not a party to this letter has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any of its terms. 19.2 Notwithstanding any term of this letter, the consent of any person who is not a party to this letter is not required to rescind or vary this letter at any time. 20. Counterparts This letter may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this letter. 21. Governing Law and Jurisdiction 21.1 This letter (including the agreement constituted by your acknowledgement of its terms) (the "Letter") [and any non-contractual obligations arising out of or in connection with it (including any non-contractual obligations arising out of the negotiation of the transaction contemplated by this Letter) 13 ] [is/are] governed by English law. 13 This wording is intended to make non-contractual obligations arising out of or in connection with the mandate letter subject to English law. (The reference to non-contractual obligations arising out of the negotiation of the contemplated transaction is intended to specifically apply the governing law (and jurisdiction) clause to any noncontractual obligations arising out of negotiations where the transaction breaks down before the Facility Documents are entered into.) However, if the mandate letter envisages a cross-border transaction where different Facility Documents will be governed by different governing laws, consider whether it is appropriate, in the context of that transaction, for English law to apply to non-contractual obligations arising out of or in connection with the Facility Documents which are not governed by English law.
21.2 The courts of England have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Letter [(including a dispute relating to any non-contractual obligation arising out of or in connection with either this Letter or the negotiation of the transaction contemplated by this Letter)] 14. 15 21.3 [Without prejudice to any other mode of service allowed under any relevant law, the Company: irrevocably appoints [ ] 16 as its agent for service of process in relation to any proceedings before the English courts in connection with any Mandate Document; and agrees that failure by a process agent to notify the Company of the process will not invalidate the proceedings concerned.] 17 If you agree to the above, please acknowledge your agreement and acceptance of the offer by signing and returning the enclosed copy of this letter [together with the Fee Letter(s) countersigned by you] to [ ] at [ ]. Yours faithfully. For and on behalf of [Mandated Lead Arranger] 14 To the extent that the square bracketed wording relating to non-contractual obligations and other matters in paragraph 21.1 is included, this wording should also be included in paragraph 21.2. 15 Consider whether the following provisions and/or any arbitration provision are relevant to the transaction: Waiver of Immunity [Sovereign Obligor/Public sector entity] waives generally all immunity it or its assets or revenues may otherwise have in any jurisdiction, including immunity in respect of: the giving of any relief by way of injunction or order for specific performance or for the recovery of assets or revenues; and the issue of any process against its assets or revenues for the enforcement of a judgment or, in an action in rem, for the arrest, detention or sale of any of its assets and revenues. Central Bank These waivers extend to the property of [ and agrees is its property.] ] central bank which [Sovereign Obligor/Public sector entity] accepts 16 17 If a 3 rd party is appointed as process agent, insert a requirement for the Company to provide a copy of such 3 rd party's acceptance letter Delete if the Company is incorporated in England and Wales
. For and on behalf of [Mandated Lead Arranger]. For and on behalf of [Bookrunner]. For and on behalf of [Bookrunner]. For and on behalf of [Agent] 18 We acknowledge and agree to the above:. For and on behalf of [THE COMPANY] 18 This is in its capacity as documentation agent as it will not have been appointed as agent to the lenders at this stage.
APPENDIX [Attach Term Sheet]