EXHIBIT 10(z)
CONFORMED COPY
CREDIT AGREEMENT
relating to
(i) a multicurrency revolving loan facility of EURO 250,000,000; and
(ii) a 364 days facility of EURO 250,000,000
dated 24 September 2001
AON CORPORATION
as GUARANTOR
and
AON FINANCE LIMITED
AON FRANCE S.A.
AON GROEP NEDERLAND B.V.
AON HOLDINGS B.V.
AON XXXXX & XXXXXXX HOLDINGS GmbH
AS BORROWERS
and
THE LENDERS
and
CITIBANK INTERNATIONAL plc
AS AGENT
and
SALOMON BROTHERS INTERNATIONAL LIMITED
AS ARRANGER
[LINKLATERS & ALLIANCE LOGO]
LINKLATERS
Ref: PHPS/RICH
TABLE OF CONTENTS
CLAUSE PAGE
1 DEFINITIONS AND INTERPRETATION..........................................1
2 FACILITIES.............................................................13
3 PURPOSE................................................................15
4 CONDITIONS PRECEDENT...................................................15
5 REVOLVING CREDIT FACILITY AND 364 DAY FACILITY.........................15
6 ALTERNATIVE CURRENCIES.................................................17
7 INTEREST...............................................................18
8 REPAYMENT, PREPAYMENT, CANCELLATION AND EXTENSION......................21
9 CHANGES IN CIRCUMSTANCES...............................................23
10 PAYMENTS...............................................................26
11 GUARANTEE..............................................................30
12 REPRESENTATIONS AND WARRANTIES.........................................33
13 UNDERTAKINGS...........................................................38
14 FINANCIAL UNDERTAKINGS.................................................42
15 DEFAULT................................................................43
16 SET-OFF................................................................46
17 PRO RATA SHARING.......................................................46
18 THE ARRANGER, THE AGENT AND THE LENDERS................................47
19 FEES AND EXPENSES......................................................51
20 AMENDMENTS AND WAIVERS.................................................53
21 MISCELLANEOUS..........................................................55
22 NOTICES................................................................55
23 ASSIGNMENTS AND TRANSFERS..............................................57
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24 INDEMNITIES............................................................59
25 LAW AND JURISDICTION...................................................60
SCHEDULE 1 THE LENDERS........................................................62
SCHEDULE 2 CONDITIONS PRECEDENT...............................................63
SCHEDULE 3 DRAWDOWN NOTICE....................................................65
SCHEDULE 4 MANDATORY COST RATE................................................66
SCHEDULE 5 FORM OF TRANSFER CERTIFICATE.......................................68
SCHEDULE 6 FORM OF DEED OF ACCESSION..........................................71
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THIS AGREEMENT is made on 24 September 2001
BY:
(1)
AON CORPORATION, a company incorporated in the State of Delaware of 000
Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, XXX (the "GUARANTOR");
(2) AON FINANCE LIMITED, a company incorporated in England and Wales with
registered number 000777539 ("AON UK");
(3) AON FRANCE S.A., a company incorporated in France with registered number
682019377 RCS NANTERRE ("AON FRANCE");
(4) AON GROEP NEDERLAND B.V., a company incorporated in The Netherlands with
a corporate seat in Rotterdam ("AON GROEP");
(5) AON HOLDINGS B.V., a company incorporated in The Netherlands with a
corporate seat in Rotterdam ("AON HOLDINGS");
(6) AON XXXXX & XXXXXXX HOLDINGS GmbH, a company incorporated in Germany
with registered number 00000 ("XXX XXXXXXXXXXX");
(7) THE LENDERS listed in Schedule 1 (the "LENDERS");
(8) CITIBANK INTERNATIONAL PLC of 000 Xxxxxx, Xxxxxx, XX0X 0XX as the Agent
(as that term is more particularly defined below); and
(9) SALOMON BROTHERS INTERNATIONAL LIMITED of Citigroup Centre, 33 Canada
Square, Xxxxxx Xxxxx, Xxxxxx X00 0XX as Arranger of the facilities made
available hereunder (the "ARRANGER").
IT IS AGREED as follows:
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCOUNTS" means:
(a) in relation to the Guarantor, its audited consolidated
statements of income, stockholders' equity and cash flows; and
(b) in relation to any other Obligor, its accounts which shall have
been audited to the extent required by the law of the
jurisdiction of incorporation of such Obligor.
"ACT" means the Companies Xxx 0000.
"ADVANCE" means a Revolving Advance or a 364 Day Advance.
"AFFILIATE" means, in relation to a person, a Subsidiary or a holding
company (as defined in Section 736 of the Act) of that person and any
other Subsidiary of that holding company.
"AGENT" means Citibank International plc in its capacity as agent and
trustee for the Lenders and each successor Agent appointed under Clause
18.12 (REMOVAL AND RESIGNATION OF THE AGENT).
"AGREED JURISDICTION" means England and Wales, France, The Netherlands
and Germany.
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"ALTERNATIVE CURRENCY" means Sterling, Dollars or any other currency
(other than euros) which is freely convertible into euros, freely
transferable and readily available in the London interbank market.
"AVAILABLE REVOLVING CREDIT COMMITMENT" means, in relation to a Lender,
its Revolving Credit Commitment less the Original Euro Amount of its
Participations in the Revolving Advances.
"AVAILABLE REVOLVING CREDIT FACILITY" means the aggregate of the
Available Revolving Credit Commitments of the Lenders.
"AVAILABLE 364 DAY FACILITY" means the aggregate of the Available 364
Day Commitments of the Lenders.
"AVAILABLE 364 DAY COMMITMENT" means, in relation to a Lender, its 364
Day Commitment less the Original Euro Amount of its Participations in
all 364 Day Advances.
"BORROWERS" means AON UK, AON France, AON Groep, AON Holdings, AON
Deutschland, and any other Group Company that becomes a party to this
Agreement pursuant to Clause 2.4 (ADDITIONAL Borrowers) and "BORROWER"
shall be construed accordingly.
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
banks are open for general interbank business in London and:
(a) in relation to a transaction involving an Alternative Currency,
the principal financial centre of the country of that
Alternative Currency; and
(b) in relation to a transaction which relates to a payment or rate
fixing in euros or other matter relating to euros means a day
on which the Trans-European Automated Real-time Gross
settlement Express Transfer System (TARGET) is operating.
"CERTIFIED COPY" means, in relation to a document, a copy of that
document bearing the endorsement, or a certificate attached to that
document bearing the endorsement "Certified a true, complete and
accurate copy of the original, which has not been amended [otherwise
than by a document, a Certified Copy of which is attached hereto]",
which has been signed and dated by a duly authorised officer of the
relevant company and which complies with that endorsement.
"CHANGE" means the introduction, implementation, repeal, withdrawal or
change in, or in the interpretation or application of, (a) any law,
regulation, practice or concession, or (b) any directive, requirement,
request or guidance (whether or not having the force of law but if not
having the force of law, one which applies generally to a class or
category of financial institutions of which that Lender (or that
company) forms part and compliance with which is in accordance with the
general practice of those financial institutions) of the European
Community, any central bank or any other fiscal, monetary, regulatory or
other similar authority.
"CHANGE OF CONTROL" means where a person (whether alone or together with
any associated person or persons) becomes a beneficial owner of shares
in the issued share capital of the Guarantor carrying the right to
exercise more than 50 per cent. of the votes exercisable at a general
meeting of the Guarantor (for the purposes of this definition,
"ASSOCIATED PERSON" means, in relation to any person, a person who is
(i) "ACTING IN CONCERT" (as defined in the City Code on Takeovers and
Mergers) with that person or (ii) a
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"CONNECTED PERSON" (as defined in Section 839 of the Income and
Corporation Taxes Act 1988) of that person).
"CODE" means the US Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"COMMITMENT" means, in relation to a Lender, the aggregate of its
Revolving Credit Commitment and its 364 Day Commitment.
"CONSOLIDATED INTEREST EXPENSE" means ,in relation to a Relevant Period,
the consolidated net interest expense and any other finance charges of
the Group (for the avoidance of doubt, this definition shall be
construed so as to be consistent with US GAAP).
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all trades of businesses (whether or not incorporated)
under common control which, together with the Group Companies, are
treated as a single employer under Section 414 of the Code and the
regulations thereunder.
"CROSS DEFAULT PROVISION" means a contractual right to demand or
accelerate repayment of any Indebtedness of all or any of the Group
Companies or to withdraw any commitment to provide finance to all or any
of the Group Companies on the occurrence of any event which would
entitle any other creditor or creditors of all or any of the Group
Companies to demand or accelerate repayment of any Indebtedness of all
or any of the Group Companies other than in respect of any mandatory
prepayment triggered by a Change of Control or to withdraw any
commitment to provide finance (other than where such right arises due to
illegality or increased costs) to all or any of the Group Companies
(whether or not such other creditor or creditors do so demand,
accelerate or withdraw).
"CSC" means Combined Specialty Corporation, the new subsidiary to be
formed by the Guarantor for the purposes of the Demerger.
"CSC GROUP" means CSC and each of CSC's Subsidiaries.
"CSC SPIN-OFF" means the distribution of common stock in CSC as a
tax-free dividend to the current holders of the Guarantor's common
stock.
"DANGEROUS MATERIALS" means any element or substance, whether consisting
of gas, liquid, solid or vapour, identified by any Environmental Law to
be, to have been, or to be capable of being or becoming, harmful to
mankind or any living organism or damaging to the Environment.
"DEBT RATING LEVEL" means the Guarantor's senior unsecured long term
debt rating by S&P and/or Moody's.
"DEED OF ACCESSION" means a deed substantially in the form set out in
Schedule 6 (FORM OF DEED OF ACCESSION).
"DEFAULT" means any event specified as such in Clause 15.1 (DEFAULT).
"DEFAULT NOTICE" has the meaning given to that term in Clause 15.2
(ACCELERATION).
"DEMERGER" means the demerging of the general insurance underwriting
business of the Guarantor to form the CSC Group to be effected on the
basis set out in the public documents to be issued to the holders of the
Guarantor's common stock, including (1) the CSC Spin-Off and (2) the
Facilitating Transactions.
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"DOLLARS" and "$" mean the lawful currency for the time being of US.
"DORMANT SUBSIDIARY" means, on any given date, a Group Company (a) which
has been dormant within the meaning of section 250(3) of the Act for the
period of 12 months ending on that date and (b) the value of whose
assets do not exceed in aggregate L5,000 (or an equivalent amount in any
relevant currency).
"DRAWDOWN DATE" means the date on which an Advance is made, or is
proposed to be made.
"DRAWDOWN NOTICE" means a notice substantially in the form set out in
Schedule 3.
"EBITDA" means, in relation to a Relevant Period, the consolidated net
profit of the Group before interest expenses and tax plus any amounts
provided for depreciation and amortisation.
"ENCUMBRANCE" means any mortgage, charge, assignment by way of security,
pledge, hypothecation, lien, right of set-off, retention of title
provision, trust or flawed asset arrangement (for the purpose of, or
which has the effect of, granting security) or any other security
interest of any kind whatsoever.
"ENVIRONMENT" means all or any of the following media: air (including
air within buildings or other structures and whether above or below
ground); land (including buildings and any other structures or erections
in, on or under it and any soil and anything below the surface of land);
land covered with water; and water (including sea, ground and surface
water).
"ENVIRONMENTAL LAW" means any statutory or common law, treaty,
convention, directive or regulation having legal or judicial effect
whether of a criminal or civil nature, concerning:
(a) pollution or contamination of the Environment;
(b) harm, whether actual or potential, to mankind and human senses,
living organisms and ecological systems;
(c) the generation, manufacture, processing, distribution, use
(including abuse), treatment, storage, disposal, transport or
handling of Dangerous Materials; or
(d) the emission, leak, release or discharge into the Environment
of noise, vibration, dust, fumes, gas, odours, smoke, steam,
effluvia, heat, light, radiation (of any kind), infection,
electricity or any Dangerous Material and any matter or thing
capable of constituting a nuisance or an actionable tort of any
kind in respect of such matters.
"ERISA" means the US Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EURO", "EUROS" or "EURO" means the single currency of Participating
Member States.
"EURO EQUIVALENT" means, in relation to an amount in an Alternative
Currency on the day on which the calculation falls to be made, the
amount of euros which could be purchased with that amount of the
Alternative Currency using the Agent's spot rate of exchange for the
purchase in the London foreign exchange market of euros with the
Alternative Currency at or about 11.00 a.m. on the second Business Day
before that date.
"EURIBOR" means, in relation to any Advance or other sum in euros and in
respect of a particular Interest Period:
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(a) the rate of the offered quotation for deposits in euros for a
period comparable to that Interest Period determined by the
Banking Federation of the European Union and as displayed on
the appropriate page of the Telerate Service (or such other
page or service as may replace it for the purpose of displaying
offered rates of prime banks for deposits in euros) at or about
11.00 a.m. Brussels time on the second Business Day before the
first day of that Interest Period; or
(b) if no such offered quotation appears on the Telerate Service,
the arithmetic mean (rounded upwards to 4 decimal places) of
the rates per annum (as quoted to the Agent at its request) at
which each Reference Bank was offering deposits in euros in an
amount comparable with that Advance or other sum, as the case
may be, to leading banks in the European interbank market for a
period equal to that Interest Period at or about 11.00 a.m.
Brussels time on the second Business Day before the first day
of that Interest Period.
"FACILITATING TRANSACTIONS" means all transactions to be entered into in
connection with or for the purposes of the proposed internal
restructuring of Group Companies in preparation for the CSC Spin-Off.
"FACILITIES" means the Revolving Credit Facility and the 364 Day
Facility; and "FACILITY" shall be construed accordingly.
"FACILITY PERIOD" means the period starting on the date of this
Agreement and ending on the date on which all the obligations and
liabilities of the Obligors under the Financing Documents are discharged
in full and the Agent and the Lenders have no continuing obligations in
relation to the Facilities.
"FEE LETTER" means the letter dated 10 August 2001 from the Agent to the
Guarantor relating to certain fees payable to the Agent and the Arranger
by the Guarantor in relation to this Agreement, being described on its
face as the "FEE LETTER".
"FINAL REPAYMENT DATE" means:
(a) in relation to the Revolving Credit Facility, the fifth
anniversary of the date of this Agreement;
(b) subject to Clause 8.5 (CANCELLATION), in relation to the 364
Day Facility (other than Term Advances), the date falling 364
days from the date of this Agreement; and
(c) in relation to each Term Advance the first anniversary of the
Drawdown Date of the relevant Term Advance.
"FINANCIAL YEAR" means the twelve month accounting period of the
Guarantor in respect of which it prepares Accounts.
"FINANCING DOCUMENTS" means this Agreement and the Fee Letter and any
other document designated as such by the Agent and the Guarantor.
"GAAP" means, in relation to a company, accounting principles, concepts,
bases and policies generally adopted and accepted in the jurisdiction of
its incorporation.
"GROUP" means the Guarantor and each of its Subsidiaries for the time
being; and "GROUP COMPANY" means any one of them.
"GUARANTEED PARTIES" means all and each of the Lenders, the Agent and
the Arranger.
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"INDEBTEDNESS" means, in relation to a person, its obligation (whether
present or future, actual or contingent, as principal or surety) for the
payment or repayment of money (whether in respect of interest, principal
or otherwise) incurred in respect of, but without double counting:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any bond, note, loan stock, debenture or similar instrument;
(d) any, xxxx discounting, note purchase, factoring or documentary
credit facility;
(e) any hire purchase agreement, conditional sale agreement or
lease, which would be treated as a capital or finance lease in
accordance with GAAP;
(f) any guarantee, bond, stand-by letter of credit or other similar
instrument issued in connection with the performance of
contracts;
(g) any interest rate or currency swap agreement or any other
hedging or derivatives instrument or agreement which for the
purpose of Clause 15.1.7 (CROSS DEFAULT) only shall be the net
amount in respect of the same;
(h) any arrangement entered into primarily as a method of raising
finance pursuant to which any asset sold or otherwise disposed
of by that person is or may be leased to or re-acquired by a
Group Company (whether following the exercise of an option or
otherwise); or
(i) any guarantee, indemnity or similar insurance against financial
loss given in respect of the obligation of any person falling
within paragraphs (a) to (g) above inclusive,
but shall not include moneys which are for the time being owing by any
Group Company to any other Group Company.
"INFORMATION MEMORANDUM" means the information memorandum dated 14
August 2001 and prepared by the Guarantor in connection with this
Agreement.
"INTEREST PERIOD" means each period determined in accordance with
Clause 7 (INTEREST) for the purpose of calculating interest on Advances
or overdue amounts.
"LENDER TRANSFEREE" has the meaning given to that term in Clause 23.4.2.
"LENDERS" means the banks and financial institutions listed in Schedule
1 (THE LENDERS) their respective successors in title and any Lender
Transferee.
"LENDING OFFICE" means the office or offices notified by a Lender to the
Agent on or before the date it becomes a Lender (or, following that
date, by not less than 5 Business Days' written notice) at the office or
offices through which that Lender's Commitment is maintained and through
which its Participation is made and maintained under this Agreement.
"LEVEL 1" means a Debt Rating Level of "AA-" or better by S&P or "Aa3"
or better by Moody's.
"LEVEL 2" means a Debt Rating Level of "A-" or better by S&P or "A3" or
better by Moody's but excluding any rating which falls within Level 1.
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"LEVEL 3" means a Debt Rating Level of less than "A-" by S&P or less
than "A3" by Moody's.
"LIBOR" means, in respect of an Advance or other sum in a particular
currency and in respect of a particular Interest Period:
(a) the rate of the offered quotation for deposits in that currency
for a period comparable to that Interest Period which appears
on the display designated as "Page 3750" or "Page 3740", as
appropriate, on the Telerate Service (or such other page or
service as may replace it for the purpose of displaying London
interbank offered rates of prime banks for deposits in that
currency) at or about 11.00 a.m. on the second Business Day
before the first day of that Interest Period (or if that
currency is Sterling, at or about 11.00 a.m. on the Drawdown
Date);
(b) if no such offered quotation appears on "Page 3750" or "Page
3740", as appropriate, on the Telerate Service, the arithmetic
mean (rounded upwards to 4 decimal places) of the rates per
annum (as quoted to the Agent at its request) at which each
Reference Bank was offering deposits in that currency in an
amount comparable with that Advance or other sum, as the case
may be, to leading banks in the London interbank market for a
period equal to that Interest Period at or about 11.00 a.m. on
the second Business Day before the first day of that Interest
Period (or if that currency is Sterling, at or about 11.00 a.m.
on the Drawdown Date).
"LONDON BUSINESS DAY" means a day (other than a Saturday or Sunday) on
which banks are open for general interbank business in London.
"MAJORITY LENDERS" means a group of Lenders whose Commitments comprise
at least 66 2/3 per cent. of the Total Commitments (taking no account,
for the purposes of this definition, of the last sentence in Clause 15.2
(ACCELERATION)).
"MANDATORY COST RATE" means, in relation to a Lender, the rate
determined in accordance with Schedule 4 (MANDATORY COST RATE) and
expressed as a rate per cent. per annum.
"MARGIN" means the relevant percentage amount per annum as determined by
the provisions set out in Clause 7.2 (MARGIN).
"MARGIN STOCK" has the meaning assigned to that term under Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the ability of the Guarantor to comply with its obligations
under any Financing Document; or
(b) the business, assets, condition (financial or otherwise),
performance, results of operations, or prospects of the
Post-Demerger Group or, if the Guarantor has confirmed or it
has notified the holders of Aon common stock or the US
Securities and Exchange Commission that the Demerger is not to
take place, the Group taken as a whole; or
(c) the validity or enforceability of the Financing Documents or
the rights or remedies of the Agent or the Lenders thereunder.
"MOODY'S" means Xxxxx'x Investor Services, Inc., or any successor
thereto.
"MULTIEMPLOYER PLAN" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Guarantor or
any member of the
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Controlled Group is a party to which more than one employer is obligated
to make contributions.
"NET WORTH" means at any date the consolidated stockholders' equity of
the Guarantor and its consolidated Subsidiaries and which shall not
include any gains or losses attributed to any foreign exchange
transactions entered into by any Group Company (for the avoidance of
doubt this definition shall be construed so as to be consistent with US
GAAP).
"OBLIGORS" means all and each of the Guarantor and the Borrowers.
"ORIGINAL EURO AMOUNT" means:
(a) in relation to an Advance, or a Participation in an Advance,
denominated in euros, the amount of that Advance or that
Participation, as the case may be; and
(b) in relation to an Advance, or a Participation in an Advance,
denominated in an Alternative Currency, the Euro Equivalent of
the amount of that Advance or that Participation, as the case
may be, calculated as at the Drawdown Date of that Advance,
provided that if all or part of that Advance is not made or is repaid or
prepaid, the "Original Euro Amount" of that Advance and of the
Participations of the Lenders in that Advance shall be correspondingly
reduced.
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Union relating to
European Monetary Union.
"PARTICIPATION" means, in relation to a Lender and an Advance, the part
of that Advance made available or to be made available by that Lender
and thereafter the part of that Advance owing to that Lender from time
to time.
"PARTY" means a party to this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"PERMITTED ENCUMBRANCE" means:
(a) any Encumbrance subsisting under or in connection with this
Agreement;
(b) any right of set-off arising by operation of law or in the
ordinary course of trading;
(c) any retention of title to goods supplied to a Group Company in
the ordinary course of its trading activities;
(d) Encumbrances for taxes, assessments or governmental charges or
levies on the assets of a Group Company if the same shall not
at the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves in
accordance with GAAP have been made;
(e) any lien arising by operation of law in the ordinary course of
trading in respect of any obligation which is less than 60 days
overdue or which is being contested in good faith and by
appropriate means and for which adequate reserves have been
made;
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(f) Encumbrances arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or
other social security or retirement benefits, or similar
legislation;
(g) utility easements, building restrictions and such other
Encumbrances or charges against real property as are of a
nature generally existing with respect to properties of similar
character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in
the business of the Group Companies;
(h) Encumbrances created by a Group Company over deposits and
investments in the ordinary course of such Group Company's
insurance and reinsurance trade to comply with the requirements
of any regulatory body of insurance or insurance broking
business;
(i) Encumbrances over and limited to the balance of credit balances
on bank accounts of Group Companies created in order to
facilitate the operation of such bank accounts and other bank
accounts of such Group Companies on a net balance basis with
credit balances and debit balances on the various accounts
being netted off for interest purposes; and
(j) Encumbrances not otherwise permitted pursuant to paragraphs (a)
to (h) above inclusive over assets having an aggregate value,
and securing Indebtedness in an aggregate amount, not exceeding
an amount equal to 10 per cent. of the Net Worth of the
Guarantor (as shown in the Guarantor's most recent Accounts).
"PLAN" means an employee pension benefit plan, as defined in Section
3(2) of ERISA, as to which the Guarantor or any member of the Controlled
Group may have any liability.
"POST DEMERGER GROUP" means the Guarantor and each of its Subsidiaries
but excluding any member of the CSC Group;
"POTENTIAL DEFAULT" means an event or omission which, with the giving of
any notice, the lapse of time or the satisfaction of any other condition
in each case under Clause 15.1 (DEFAULT), would be a Default.
"QUALIFYING LENDER" means an institution which is a bank for the
purposes of section 840 A of the Income and Corporation Taxes Xxx 0000.
"QUARTER DATE" means each 31 March, 30 June, 30 September and 31
December.
"REFERENCE BANKS" means the principal London offices of Citibank, N.A.,
The Royal Bank of Scotland plc and Lloyds TSB Bank plc or such other
bank or banks as may be agreed between the Agent (acting on the
instructions of the Majority Lenders) and the Guarantor.
"REGULATION "U" or "X" means, respectively, Regulation U or X of the
Board of Governors of the Federal Reserve System as from time to time in
effect and any successor thereto or other regulation or official
interpretation of the Board of Governors relating to, as the case may
be, (i) reserve requirements applicable to depository institutions or
(ii) the extension of credit by persons other than banks, brokers and
dealers or, by securities brokers and dealers or by banks or, as the
case may be, by specified lenders, in each case for the purpose of
purchasing or carrying margin stocks applicable to such persons.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to
a Plan, excluding, however, such events as to which the PBGC has by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event; provided that a
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failure to meet the minimum funding standard of Section 412 of the Code
and of Section 302 of ERISA shall be a Reportable Event regardless of
the issuance of any such waiver of the notice requirement in accordance
with either Section 4043(a) of ERISA or Section 412(d) of the Code.
"RELEVANT PERIOD" means:
(a) each financial year of the Guarantor; and
(b) each period beginning on the first day of the second half of a
financial year of the Guarantor and ending on the last day of
the first half of its next financial year.
"RESERVATIONS" means the principle that equitable remedies are remedies
which may be granted or refused at the discretion of the court, the
limitation of enforcement by-laws relating to bankruptcy, insolvency,
liquidation, reorganisation, court schemes, moratoria, administration
and other laws generally affecting the rights of creditors, the time
barring of claims under the Limitation Xxx 0000, the possibility that an
undertaking to assume liability for or to indemnify against non-payment
of United Kingdom stamp duty may be void, defences of set off or
counterclaim and similar principles or any analogous general principles
of law under the laws of any other jurisdictions in which relevant
obligations have to be performed.
"REVOLVING ADVANCE" means an advance made or to be made to a Borrower
under the Revolving Credit Facility or, as the case may be, the
outstanding principal amount of any such advance.
"REVOLVING CREDIT COMMITMENT" means, in relation to a Lender, the
principal amount described as such set opposite its name in Schedule 1
(THE LENDERS) or set out under the heading "Amount of Commitment
Transferred" in the schedule to any relevant Transfer Certificate, in
each case as reduced or cancelled in accordance with this Agreement.
"REVOLVING CREDIT COMMITMENT PERIOD" means the period starting on the
date of this Agreement and ending on the date falling 1 month before the
Final Repayment Date in relation to the Revolving Credit Facility.
"REVOLVING CREDIT FACILITY" means the multicurrency revolving loan
facility referred to in Clause 2.1.1(a).
"REVOLVING CREDIT FACILITY LIMIT" means, subject to Clause 8.5
(CANCELLATION), EURO 250,000,000.
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, or any successor thereto.
"SINGLE EMPLOYER PLAN" means a Plan subject to Title IV of ERISA
maintained by the Guarantor or any member of the Controlled Group for
employees of the Guarantor or any member of the Controlled Group, other
than a Multiemployer Plan.
"STERLING" and "L" means the lawful currency for the time being of the
United Kingdom.
"SUBSIDIARY" means a subsidiary within the meaning of section 736 of the
Act.
"SUBSTANTIAL PORTION" assets which (a) represent more than 10 per cent.
of the consolidated assets of the Group, as shown in the most recent
quarterly consolidated management accounts of the Guarantor delivered to
the Agent pursuant to Clause 13.1.2 (MANAGEMENT ACCOUNTS) preceding the
date on which such determination is made, or (b)
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are responsible for more than 10 per cent. of the consolidated net sales
or of the net income of the Group for the 12 month period ending on the
Quarter Date immediately preceding the date of determination as shown by
the relevant quarterly consolidated management accounts delivered to the
Agent pursuant to Clause 13.1.2 (MANAGEMENT ACCOUNTS).
"TAXES" includes all present and future taxes, charges, imposts, duties,
levies, deductions, withholdings or fees of any kind whatsoever, or any
amount payable on account of or as security for any of the foregoing, by
whomsoever on whomsoever and wherever imposed, levied, collected,
withheld or assessed, together with any penalties, additions, fines,
surcharges or interest relating thereto; and "TAX" and "TAXATION" shall
be construed accordingly.
"TERM ADVANCE" means an advance made or to be made to a Borrower under
the 364 Day Facility which is to be repaid on the first anniversary of
the Drawdown Date of such advance or, as the case may be, the
outstanding principal amount of any such advance.
"TRANSITIONAL SERVICES" means the services to be provided by the
Post-Demerger Group to the CSC Group, including but not limited to human
resource administration services, IT and telecommunications support and
services, payroll, salary and employee benefits services, tax, audit and
accounting services, legal services, treasury services (cash investment,
foreign exchange, derivatives and hedging), intellectual property
licensing, premium financing services, claims administration services
and benefits/brokerage consultancy and risk management services.
"364 DAY ADVANCE" means an advance made or to be made to a Borrower
under the 364 Day Facility (which, for the avoidance of doubt, includes
a Term Advance) or, as the case may be, the outstanding principal amount
of any such advance.
"364 DAY COMMITMENT" means, in relation to a Lender, the principal
amount described as such set opposite its name in Schedule 1 (THE
LENDERS) or set out under the heading "Amount of Commitment Transferred"
in the schedule to any relevant Transfer Certificate, in each case as
reduced or cancelled in accordance with this Agreement.
"364 DAY COMMITMENT PERIOD" means the period starting on the date of
this Agreement and ending on the date falling 364 days after the date of
this Agreement.
"364 DAY FACILITY" means the 364 day facility referred to in Clause
2.1.1(ii).
"364 DAY FACILITY LIMIT" means, subject to Clause 8.5 (CANCELLATION),
EURO 250,000,000.
"TERMINATION EVENT" means, with respect to a plan which is subject to
Title IV of ERISA, (a) a Reportable Event, (b) the withdrawal of the
Guarantor or any other member of the Controlled Group from such Plan
during a plan year in which the Guarantor or any other member of the
Controlled Group was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or was deemed such under Section 4062(e) of ERISA,
(c) the termination of such Plan, the filing of a notice of intent to
terminate such Plan or the treatment of an amendment of such Plan as a
termination under Section 4041 of ERISA, (d) the institution by the PBGC
of proceedings to terminate such Plan or (e) any event or condition
which might constitute grounds under Section 4042 or ERISA for the
termination of or appointment of a trustee to administer, such Plan.
"TOTAL COMMITMENTS" means the aggregate of the Commitments of the
Lenders.
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"TOTAL REVOLVING CREDIT COMMITMENTS" means the aggregate of the Lenders'
Revolving Credit Commitments.
"TOTAL 364 DAY COMMITMENTS" means the aggregate of the Lenders' 364 Day
Commitments.
"TRANSFER CERTIFICATE" means a document substantially in the form set
out in Schedule 5 (FORM OF TRANSFER CERTIFICATE).
"UNFUNDED LIABILITY" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under a Single
Employer Plan exceeds the fair market value of assets allocable to such
benefits, all determined as of the then most recent valuation date for
such Plans using PBGC actuarial assumptions for single employer plan
terminations.
"UK BORROWER" means a Borrower within the charge to UK corporation tax.
"US" means the United States of America.
"US LOAN AGREEMENT NUMBER 1" means the
credit agreement dated 14 January
1997 as amended on 10 October 1997 among the Guarantor, certain lenders,
certain co-agents and The First National Lender of Chicago as agent.
"US LOAN AGREEMENT NUMBER 2" means the $600,000,000 revolving
credit
agreement dated 8 October 1998 as amended and restated on 15 September
2000 among the Guarantor, certain lenders and the First National Bank of
Chicago as arranger.
"VAT" means value added tax as provided for in the Value Added Tax Xxx
0000 and legislation (or purported legislation and whether delegated or
otherwise) supplemental to that Act or in any primary or secondary
legislation promulgated by the European Community or any official body
or agency of the European Community, and any tax similar or equivalent
to value added tax imposed by any country other than the United Kingdom
and any similar or turnover Tax replacing or introduced in addition to
any of the same.
"WHOLLY OWNED SUBSIDIARY" means a directly or indirectly wholly-owned
subsidiary within the meaning of Section 736 of the Act.
1.2 HEADINGS
The headings in this Agreement are for convenience only and shall be
ignored in construing this Agreement.
1.3 INTERPRETATION
In this Agreement (unless otherwise provided):
1.3.1 words importing the singular shall include the plural and vice
versa;
1.3.2 references to Clauses and Schedules are to be construed as
references to the clauses of, and schedules to, this Agreement;
1.3.3 references to any Financing Document or any other document
shall be construed as references to that Financing Document or
that other document, as amended, varied, novated or
supplemented, as the case may be;
1.3.4 references to any statute or statutory provision include any
statute or statutory provision which amends, extends,
consolidates or replaces the same, or which has
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been amended, extended, consolidated or replaced by the same,
and shall include any orders, regulations, instruments or other
subordinate legislation made under the relevant statute;
1.3.5 references to a document being "IN THE AGREED FORM" means that
document the form and content of which has been approved by the
Agent and the Guarantor and which has endorsed on it the words
"IN THE AGREED FORM" and which is initialled by or on behalf of
the Agent and the Guarantor;
1.3.6 references to "ASSETS" shall include revenues and the right to
revenues and property and rights of every kind, present, future
and contingent and whether tangible or intangible (including
uncalled share capital);
1.3.7 the words "INCLUDING" and "IN PARTICULAR" shall be construed as
being by way of illustration or emphasis only and shall not be
construed as, nor shall they take effect as, limiting the
generality of any foregoing words;
1.3.8 the words "OTHER" and "OTHERWISE" shall not be construed
EJUSDEM GENERIS with any foregoing words where a wider
construction is possible;
1.3.9 references to a "PERSON" shall be construed so as to include
that person's assigns, transferees or successors in title and
shall be construed as including references to an individual,
firm, partnership, joint venture, company, corporation,
unincorporated body of persons or any state or any agency of a
state;
1.3.10 where there is a reference in this Agreement to any amount,
limit or threshold specified in euro, in ascertaining whether
or not that amount, limit or threshold has been attained,
broken or achieved, as the case may be, a non-euro amount shall
be counted on the basis of the Euro Equivalent at that time;
1.3.11 references to liability or liabilities are to be construed to
include all liabilities and obligations whether actual,
contingent, present or future and whether incurred solely or
jointly; and
1.3.12 references to time are to London time.
1.4 THIRD PARTY RIGHTS
1.4.1 Unless expressly provided to the contrary in a Financing
Document, a person who is not a party to a Financing Document
may not enforce any of its terms under the Contracts (Rights of
Third Parties) Xxx 0000.
1.4.2 Notwithstanding any terms of any Financing Document, the
consent of any third party is not required for any variation
(including any release or compromise of any liability) under or
termination of that Financing Document.
2 FACILITIES
2.1 FACILITIES
2.1.1 Subject to the terms of this Agreement, the Lenders agree to
make available to the Borrowers:
(i) a multicurrency revolving credit facility in the maximum
principal amount of EURO 250,000,000; and
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(ii) a multicurrency revolving 364 day facility in the maximum
principal amount of EURO 250,000,000 with an option to
draw Term Advances.
2.1.2 Subject to Clause 8.2 (MANDATORY PREPAYMENT ON CHANGE OF
CONTROL) but notwithstanding any other term of this Agreement:
(i) the Original Euro Amounts of all Revolving Advances shall
not at any time exceed the Total Revolving Credit
Commitments; and
(ii) the Original Euro Amounts of all 364 Day Advances shall
not at any time exceed the Total 364 Day Commitments.
2.2 OBLIGATIONS SEVERAL
2.2.1 The obligations of the Arranger, Agent and each Lender under
this Agreement are several.
2.2.2 The failure of the Arranger, Agent or a Lender to carry out its
obligations under this Agreement shall not relieve any other
Party of any of its obligations under this Agreement.
2.2.3 None of the Lenders, the Arranger nor the Agent shall be
responsible for the obligations of any other Party under this
Agreement.
2.2.4 The obligations of each Borrower under this Agreement are
several.
2.2.5 The failure of any Borrower to carry out its obligations under
this Agreement shall not relieve any other Borrower of any of
its obligations under this Agreement.
2.2.6 None of the Borrowers shall be responsible for the obligations
of any other Borrower under this Agreement.
2.3 RIGHTS SEVERAL
2.3.1 The rights of each Lender, the Arranger and the Agent and each
Obligor under this Agreement are several. All amounts due, and
obligations owed, to each of them are separate and independent
debts or, as the case may be, obligations.
2.3.2 Each Lender, the Arranger and the Agent may, except as
otherwise stated in this Agreement, separately enforce its
rights under this Agreement.
2.4 ADDITIONAL BORROWERS
2.4.1 The Guarantor may, on giving notice to the Agent, nominate one
of its Wholly-Owned Subsidiaries as an additional Borrower
which is either:
(i) incorporated in an Agreed Jurisdiction; or
(ii) with the Agent's prior consent (acting on the
instructions of all of the Lenders) which is incorporated
outside an Agreed Jurisdiction.
2.4.2 A Group Company wishing to become an additional Borrower shall
execute and deliver a Deed of Accession to the Agent together
with all the documents referred to in the schedule to that Deed
of Accession, each in form and substance satisfactory to the
Agent. On receiving such documents, the Agent shall execute the
relevant Deed of Accession.
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2.4.3 A Group Company shall accede to this Agreement as a Borrower on
the Agent counter-signing the relevant Deed of Accession.
2.4.4 Each Party authorises the Agent to execute on its behalf a Deed
of Accession delivered to the Agent in accordance with the
terms of this Clause 2.4.
3 PURPOSE
3.1 PURPOSE
Each Borrower shall use the proceeds of all Advances for its general
corporate purposes or refinancing of existing Indebtedness.
3.2 NO MONITORING
Neither the Agent, the Arranger nor any Lender shall be obliged to
investigate or monitor the use or application of the proceeds of the
Advances.
4 CONDITIONS PRECEDENT
Notwithstanding any other provision of this Agreement, none of the Agent
and the Lenders shall be under any obligation to make the Facilities
available to the Borrowers unless the Agent has notified the Guarantor
and the Lenders that it has received all the documents listed in
Schedule 2 (CONDITIONS PRECEDENT) (in form and content satisfactory to
the Agent), which it shall do promptly on receipt of such satisfactory
documentation.
5 REVOLVING CREDIT FACILITY AND 364 DAY FACILITY
5.1 UTILISATION OF REVOLVING CREDIT FACILITY AND 364 DAY FACILITY
5.1.1 Subject to the other terms of this Agreement, Revolving
Advances shall be made to any Borrower at any time during the
Revolving Credit Commitment Period when requested by that
Borrower by means of a Drawdown Notice in accordance with this
Clause 5. At the close of business on the last day of the
Revolving Credit Commitment Period, the Revolving Credit
Facility shall cease to be available for utilisation.
5.1.2 Subject to the terms of this Agreement, 364 Day Advances
(including, for the avoidance of doubt, Term Advances) shall be
made to any Borrower at any time during the 364 Day Commitment
Period when requested by that Borrower by means of a Drawdown
Notice in accordance with this Clause 5.1 At the close of
business on the last day of the 364 Day Commitment Period,
subject to Clause 8.6 (EXTENSIONS TO 364 DAY COMMITMENT
PERIOD), the 364 Day Facility shall cease to be available for
utilisation.
5.2 LIMITATIONS ON ADVANCES
The following limitations apply to Advances:
5.2.1 the Drawdown Date of a Revolving Advance or a 364 Day Advance
shall be a Business Day falling before the end of the Revolving
Credit Commitment Period or the 364 Day Commitment Period, as
the case may be;
5.2.2 the principal amount of an Advance denominated in euros shall
be:
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(i) a minimum amount of EURO 10,000,000 and an integral
multiple of EURO 1,000,000; or
(ii) the amount of the Available Revolving Credit Facility or
the Available 364 Day Facility, as the case may be;
5.2.3 the principal amount of an Advance denominated in an
Alternative Currency shall be:
(i) in an Original Euro Amount of at least EURO 10,000,000
(and integral multiples of EURO 1,000,000) and a round
amount in that currency as the Agent and the relevant
Borrower may agree; or
(ii) in an Original Euro Amount equal to the Available
Revolving Credit Facility or the Available 364 Day
Facility, as the case may be;
5.2.4 no Revolving Advance shall be made if the making of that
Revolving Advance would result in the Original Euro Amount of
all Revolving Advances exceeding the Revolving Credit Facility
Limit;
5.2.5 no 364 Day Advance shall be made if the making of that 364 Day
Advance would result in the Original Euro Amount of all 364 Day
Advances exceeding the 364 Day Facility Limit;
5.2.6 no more than 12 Advances may be outstanding at any one time;
and
5.2.7 in the case of an Advance denominated in an Alternative
Currency, the requirements of Clause 6 (ALTERNATIVE CURRENCIES)
are met.
5.3 CONDITIONS TO EACH ADVANCE
5.3.1 Subject to Clause 5.3.2, the obligation of each Lender to make
available its Participation in an Advance is subject to the
conditions that on the date on which the relevant Drawdown
Notice is given and on the Drawdown Date:
(i) the representations and warranties in Clause 12
(REPRESENTATIONS AND WARRANTIES) to be repeated on those
dates are correct and will be correct immediately after
the Advance is made; and
(ii) no Default or Potential Default has occurred and is
continuing or would occur on the making of the Advance.
5.3.2 In respect of an Advance to be made for the sole purpose of
repaying an outstanding Advance in a matching amount, the
Advance shall be made, notwithstanding the occurrence and
continuation of a Default or a Potential Default or any of the
representations and warranties to be repeated not being
correct, unless the Agent shall have served a Default Notice.
5.4 DRAWDOWN NOTICE
5.4.1 Whenever a Borrower wishes to draw down an Advance, it shall
give a duly completed Drawdown Notice to the Agent to be
received not later than 12.00 noon on the third Business Day
before the Drawdown Date (or in the case of an Advance to be
denominated in Sterling, not later than 12.00 noon on the first
Business Day before the Drawdown Date).
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5.4.2 A Drawdown Notice for an Advance to be denominated in euros may
only be given on a London Business Day.
5.4.3 A Drawdown Notice shall be irrevocable and the relevant
Borrower shall be obliged to borrow in accordance with its
terms.
5.5 NOTIFICATION TO LENDERS
The Agent shall promptly notify each Lender of the details of each
Drawdown Notice received by it and the Original Euro Amount of the
relevant requested Advance.
5.6 PARTICIPATIONS
5.6.1 Subject to the terms of this Agreement, each Lender acting
through its Lending Office shall make available to the Agent on
the Drawdown Date for an Advance an amount equal to its
Participation in the amount and currency specified in the
Drawdown Notice for that Advance.
5.6.2 For the purposes of Clause 5.6.1:
(i) the Participation of a Lender in a Revolving Advance
shall be the proportion of that Revolving Advance equal
to the proportion borne by that Lender's Available
Revolving Credit Commitment to the Available Revolving
Credit Facility on the Drawdown Date of that Revolving
Advance; and
(ii) the Participation of a Lender in a 364 Day Advance shall
be the proportion of that 364 Day Advance equal to the
proportion borne by that Lender's Available 364 Day
Commitment to the Available 364 Day Facility on the
Drawdown Date of that 364 Day Advance.
6 ALTERNATIVE CURRENCIES
6.1 REQUESTS FOR ALTERNATIVE CURRENCY
A Borrower may request in a Drawdown Notice that an Advance be
denominated in an Alternative Currency.
6.2 NO ALTERNATIVE CURRENCY
If, no later than 10.00 a.m. on the second Business Day before, or in
the case of an Advance to be denominated in Sterling no later than 10
a.m. on, the first day of an Interest Period in relation to an Advance
which is proposed to be denominated in an Alternative Currency (other
than, prior to the Commencement Date, Dollars), a Lender notifies the
Agent that:
6.2.1 for whatever reason it is impracticable for that Lender to fund
its Participation in that Advance in the proposed Alternative
Currency in the ordinary course of business in the London
interbank market; or
6.2.2 central bank or other governmental authorisation in the country
of the proposed Alternative Currency is required to permit its
use by that Lender for the making of that Advance and the
authorisation has not been obtained or is not in full force and
effect or is subject to unacceptable conditions; or
6.2.3 the use of the proposed Alternative Currency is restricted or
prohibited by any request, directive, regulation or guideline
of any governmental body, agency,
- 17 -
department or regulatory or other authority (whether or not
having the force of law) in accordance with which that Lender
is accustomed to act,
the Agent shall notify the Guarantor and the Lenders by 11.00 a.m. on
the same day. In this event, the Guarantor and the Lenders may agree
that the Advance shall not be made, provided that in the absence of such
agreement by 12.00 noon on the same day, that Lenders Participation in
the Advance shall be denominated in euros, there shall be substituted in
the definition of "EURIBOR" in Clause 1.1 (DEFINITIONS AND
INTERPRETATION) for the time "11.00 a.m." the time "1.00 p.m.", and its
participation shall be treated as a separate Advance during that
Interest Period.
6.3 EXCHANGE RATE MOVEMENTS
In relation to each Term Advance drawn in an Alternative Currency, if on
the date falling 6 months after the Drawdown Date of such Term Advance
the Agent determines that the Euro Equivalent (calculated on that date)
of that Term Advance exceeds the Original Euro Amount of that Term
Advance by 5 per cent. or more, (all of such excess being hereafter
referred to as the "EXCESS AMOUNT") the relevant Borrower shall, within
2 Business Days of receiving the Agent's demand so to do:
6.3.1 pay to the credit of such blocked account or accounts as the
Agent shall stipulate, an amount equal to the Excess Amount; or
6.3.2 repay an amount of the relevant Term Advance equal to the
Excess Amount.
7 INTEREST
7.1 INTEREST RATE
Interest shall accrue on each Advance from and including the relevant
Drawdown Date to but excluding the date the Advance is repaid at the
rate determined by the Agent to be the aggregate of:
7.1.1 the Margin;
7.1.2 LIBOR or, in relation to any Advance in euro, EURIBOR; and
7.1.3 the Mandatory Cost Rate.
7.2 MARGIN
The Margin shall, on any day, in relation to:
(i) the Revolving Credit Facility be the percentage amount per
annum set out in Column B below; and
(ii) the 364 Day Facility be the percentage amount per annum set out
in Column C below,
in each case, opposite the Debt Rating Level at the opening of business
in London on that day set out in Column A below:
COLUMN B COLUMN C
COLUMN A REVOLVING CREDIT FACILITY 364 DAY FACILITY
DEBT RATING LEVEL MARGIN MARGIN
Level 1 0.325 0.275
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COLUMN B COLUMN C
COLUMN A REVOLVING CREDIT FACILITY 364 DAY FACILITY
DEBT RATING LEVEL MARGIN MARGIN
Level 2 0.375 0.325
Level 3 0.525 0.425
provided that if on such day:
(i) the Debt Rating Level given by one of S&P or Xxxxx'x is
Xxxxx 0 and by the other of S&P or Xxxxx'x is Xxxxx 0,
Xxxxx 0 xxxxx xx the Debt Rating Level; or
(ii) the Debt Rating Level given by one of S&P or Xxxxx'x is
Xxxxx 0 and by the other of S&P or Xxxxx'x is Xxxxx 0,
Xxxxx 0 xxxxx xx the Debt Rating Level; or
(iii) the Debt Rating given by one of S&P or Xxxxx'x is Xxxxx 0
and by the other of S&P or Xxxxx'x is Xxxxx 0, Xxxxx 0
xxxxx xx the Debt Rating Level.
7.3 INTEREST PERIODS
7.3.1 Interest payable on each Advance shall be calculated by
reference to Interest Periods of 1, 2, 3 or 6 months' duration
(or such other Interest Period as the Agent, acting on the
instructions of the Lenders, may allow).
7.3.2 The relevant Borrower shall select an Interest Period for an
Advance in the relevant Drawdown Notice. In the case of any
subsequent Interest Period for a Term Advance, the relevant
Borrower may select an Interest Period for such Term Advance by
notice received by the Agent on a London Business Day no later
than 12:00 noon 3 Business Days before the commencement of that
Interest Period.
7.3.3 In respect of Term Advances interest shall be calculated by
reference to successive Interest Periods. The first Interest
Period for a Term Advance shall begin on the Drawdown Date for
that Term Advance. Each succeeding Interest Period for that
Term Advance shall begin on the last day of the previous
Interest Period.
7.3.4 If a Borrower fails to select an Interest Period for an Advance
in accordance with Clause 7.3.2, that Interest Period shall,
subject to the other provisions of this Clause 7, be one month.
7.3.5 If an Interest Period would otherwise end on a day which is not
a Business Day, that Interest Period shall instead end on the
next Business Day in the same calendar month (if there is one)
or the preceding Business Day (if there is not).
7.3.6 If an Interest Period begins on the last Business Day in a
calendar month or on a Business Day for which there is no
numerically corresponding day in the calendar month in which
that Interest Period is to end, it shall end on the last
Business Day in that later calendar month.
7.3.7 If an Interest Period for an Advance would otherwise extend
beyond the Final Repayment Date relating to the Facility under
which such Advance is made, it shall be shortened so that it
ends on that Final Repayment Date.
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7.4 DEFAULT INTEREST
7.4.1 If an Obligor fails to pay any amount payable under any
Financing Document on the due date, it shall pay default
interest on the overdue amount from the due date to the date of
actual payment calculated by reference to successive Interest
Periods (each of such duration as the Agent may select and the
first beginning on the relevant due date) at the rate per annum
being the aggregate of (a) 1 per cent. per annum, (b) the
Margin, (c) LIBOR or, as the case may be, EURIBOR and (d) the
Mandatory Cost Rate.
7.4.2 So long as the overdue amount remains unpaid, the default
interest rate shall be recalculated in accordance with the
provisions of this Clause 7.4 on the last day of each such
Interest Period and any unpaid interest shall be compounded at
the end of each Interest Period.
7.5 CALCULATION AND PAYMENT OF INTEREST
7.5.1 At the beginning of each Interest Period, the Agent shall
notify the Lenders and the relevant Borrower of the duration of
the Interest Period and the rate and amount of interest payable
for the Interest Period (but in the case of any default
interest calculated under Clause 7.4 (DEFAULT INTEREST), any
such notification need not be made more frequently than
weekly). Each notification shall set out in reasonable detail
the basis of computation of the amount of interest payable.
7.5.2 Interest due from a Borrower under this Agreement shall:
(i) accrue from day to day at the rate calculated under this
Clause 7;
(ii) except as otherwise provided in this Agreement, be paid
by the relevant Borrower to the Agent (for the account of
the Lenders or the Agent, as the case may be) in arrear
on the last day of each Interest Period, provided that
for any Interest Period which is longer than 6 months,
the relevant Borrower shall pay interest 6 monthly in
arrear during that Interest Period;
(iii) be calculated on the basis of the actual number of days
elapsed and a 360 day year (or a 365 day year in the case
of interest on an Advance denominated in Sterling) or, if
different, such number of days as is market practice for
the relevant currency; and
(iv) be payable both before and after judgment.
7.6 AGENT'S DETERMINATION
The determination by the Agent of any interest payable under this
Clause 7 shall be conclusive and binding on the Borrowers in the absence
of manifest error.
7.7 TAUX EFFECTIF GLOBAL
In order to comply with the provisions of Articles L313-1 and L313-2 of
the French consumer code ("CODE DE LA CONSOMMATION"), the effective
global rate ("TAUX EFFECTIF GLOBAL") calculated in accordance with the
articles referred to above is as set out in a letter dated the date of
this Agreement from the Agent to Aon France S.A. in the form of Schedule
7 (FORM OF TEG LETTER).
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8 REPAYMENT, PREPAYMENT, CANCELLATION AND EXTENSION
8.1 REPAYMENT
8.1.1 Subject to Clause 8.1.2, the relevant Borrower shall repay:
(i) each Advance (other than a Term Advance) in full on the
last day of the Interest Period relating to that Advance;
and
(ii) each Term Advance on the Final Repayment Date relating to
that Term Advance.
8.1.2 If all or part of an existing Advance made to a Borrower is to
be repaid from the proceeds of all or part of a new Advance
denominated in the same currency as that existing Advance to be
made to that Borrower, then as between each Lender and that
Borrower, the amount to be repaid by that Borrower shall be set
off against the amount to be advanced by that Lender in
relation to the new Advance and the party to whom the smaller
amount is to be paid shall pay to the other party a sum equal
to the difference between the two amounts.
8.2 MANDATORY PREPAYMENT ON CHANGE OF CONTROL
8.2.1 The Guarantor shall by a written notice (a "NOTICE") notify the
Agent of a Change of Control no later than the date on which
such Change of Control occurs and the Agent, upon receiving the
Notice shall promptly notify the Lenders.
8.2.2 Within 30 days of the date of occurrence of any Change of
Control, each Lender shall notify the Agent and the Guarantor
whether or not it requires its Participation in all Advances
(if any) to be prepaid and its Commitment to be cancelled. If a
Lender so notifies the Agent and the Guarantor:
(i) as from the date of such notification that Lender's
Commitment shall be cancelled; and
(ii) within 60 days of the date of occurrence of the Change of
Control the aggregate Participations of that Lender in
all Advances shall be repaid in full.
8.2.3 Any mandatory prepayment made under this Clause 8.2 shall be
made together with accrued interest on the amount prepaid and
any amounts payable under Clause 24.1 (BREAKAGE COSTS
INDEMNITY).
8.3 VOLUNTARY PREPAYMENT
8.3.1 Subject to Clause 8.3.3, any Borrower may, by giving not less
than 10 Business Days' prior notice to the Agent, without
premium or penalty prepay the whole or any part of any Advance
(but if in part, in a minimum amount of EURO 10,000,000 and an
integral multiple of EURO 5,000,000).
8.3.2 Any prepayment under this Clause 8.3 shall be made together
with accrued interest on the amount prepaid and any amounts
payable under Clause 24.1 (BREAKAGE COSTS INDEMNITY).
8.3.3 The Borrowers may not prepay all or part of any Advance except
as expressly provided in this Agreement.
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8.4 RE-BORROWING OF ADVANCES
8.4.1 Subject to the terms of this Agreement, any amounts repaid
under this Agreement (other than a Term Advance) may be
re-borrowed.
8.4.2 Subject to Clauses 8.6.5 any amount repaid or prepaid in
relation to a Term Advance may not be re-borrowed.
8.5 CANCELLATION
8.5.1 The Guarantor may, by giving the Agent not less than 15
Business Days' prior notice, cancel all or part of the
Available Revolving Credit Facility or the Available 364 Day
Facility, as the case may be, (but if in part, in a minimum
amount of EURO 10,000,000 and an integral multiple of
EURO 5,000,000).
8.5.2 Any notice of cancellation shall be irrevocable and shall
specify the date on which the cancellation shall take effect
and the amount of the cancellation. The Agent shall promptly
notify the Lenders of receipt of any such notice.
8.5.3 The Borrowers may not borrow any part of a Facility which has
been cancelled. Any cancellation shall reduce each Lender's
Revolving Credit Commitment or 364 Day Commitment, as the case
may be, rateably and shall reduce the Revolving Credit Facility
Limit or the 364 Day Facility Limit, as the case may be, by the
aggregate amount so cancelled.
8.5.4 The Borrowers may not cancel all or part of the Facilities
except as expressly provided in this Agreement.
8.6 EXTENSIONS TO 364 DAY COMMITMENT PERIOD
8.6.1 The Guarantor may at any time by notice to the Agent request an
extension to the 364 Day Commitment Period, subject to the
provisions of this Clause 8.6.
8.6.2 Upon receipt of any such request, the Lenders shall undertake a
full credit assessment of the Obligors. None of the Lenders
shall be under any legal or moral obligation to extend the 364
Day Commitment Period. No extension shall be effective unless
agreed in writing by the Agent acting on the instructions of
all the Lenders.
8.6.3 If the Guarantor requests an extension during the final sixty
days of the 364 Day Commitment Period, each of the Lenders
shall, at its absolute discretion, have the option:
(i) subject to Clause 8.6.2, to extend the 364 Day Commitment
Period for a further period of 364 days from the date on
which the 364 Day Commitment Period is then due to
expire; or
(ii) to decline such request.
8.6.4 If the Guarantor requests an extension otherwise than in
accordance with Clause 8.6.3, each of the Lenders shall, at its
absolute discretion, have the option:
(i) subject to Clause 8.6.2 and to the agreement of all of
the Lenders to extend the 364 Day Commitment Period for a
further period of 364 days from the date on which the
Agent gives written notice to the Guarantor of the
Lenders' agreement, to extend the 364 Day Commitment
Period; or
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(ii) to decline such request, in which event, each Lender may,
at or after the time of such request, immediately cancel
the undrawn portion of its 364 Day Commitment.
8.6.5 If the Lenders agree to extend the 364 Day Commitment Period
pursuant to this Clause 8.6, any amount in relation to a Term
Advance repayable during such extended period may be redrawn as
a 364 Day Advance prior to the expiry of such extended period.
9 CHANGES IN CIRCUMSTANCES
9.1 ILLEGALITY
If, after the date of this Agreement, it becomes illegal for a Lender to
maintain its Commitment or to continue to make available or fund its
Participation in any Advance, then that Lender shall notify the Agent
and the Guarantor and, upon it becoming so illegal:
9.1.1 the Commitment of that Lender shall be cancelled immediately;
and
9.1.2 the Borrowers shall prepay to the Agent (for the account of
that Lender) that Lender's Participation in all Advances
(together with accrued interest on the amount prepaid and all
other amounts owing to that Lender under this Agreement) within
10 Business Days of demand by that Lender (or, if permitted by
the relevant law, on the last day of the Interest Period of the
relevant Advances).
Any such prepayment under paragraph 9.1.2 above shall not be subject to
Clause 24.1 (BREAKAGE COSTS INDEMNITY).
9.2 INCREASED COSTS
9.2.1 If, after the date of this Agreement, a Change occurs which
causes an Increased Cost (as defined in Clause 9.2.3) to a
Lender (or any company of which that Lender is a Subsidiary)
then each relevant Borrower shall pay (as additional interest)
to the Agent (for the account of that Lender) within 5 Business
Days of demand the amount of such Increased Cost.
9.2.2 Any demand made under Clause 9.2.1 shall be made by the
relevant Lender through the Agent and shall set out in
reasonable detail so far as is practicable the basis of
computation of the Increased Cost.
9.2.3 In this Clause 9.2:
"INCREASED COST" means any cost to, or reduction in the amount
payable to, or reduction in the return on capital or regulatory
capital achieved by, a Lender (or any company of which that
Lender is a Subsidiary) to the extent that it arises, directly
or indirectly, as a result of the Change and is attributable to
the Commitment or Participation in any Advance of that Lender
or the funding of that Lender's Participation in any Advance
including:
(i) any Tax Liability (other than Tax on Overall Net Income)
incurred by that Lender;
(ii) any changes in the basis or timing of Taxation of that
Lender in relation to its Commitment or Participation in
any Advance or to the funding of that
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Lender's Participation in any Advance (other than Tax on
Overall Net Income);
(iii) the cost to that Lender (or any company of which that
Lender is a Subsidiary) of complying with, or the
reduction in the amount payable to or reduction in the
return on capital or regulatory capital achieved by that
Lender (or any company of which that Lender is a
Subsidiary) as a result of complying with, any capital
adequacy or similar requirements howsoever arising,
including as a result of an increase in the amount of
capital to be allocated to any Facility or of a change to
the weighting of that Lender's Commitment or
Participation in any Advance; and
(iv) the cost to that Lender of complying with any reserve,
cash ratio, special deposit or liquidity requirements (or
any other similar requirements).
"TAX LIABILITY" means, in respect of any person:
(i) any liability or any increase in the liability of that
person to make any payment of or in respect of Tax;
(ii) the loss of any relief, allowance, deduction or credit in
respect of Tax which would otherwise have been available
to that person;
(iii) the setting off against income, profits or gains or
against any Tax liability of any relief, allowance,
deduction or credit in respect of Tax which would
otherwise have been available to that person; and
(iv) the loss or setting off against any Tax liability of a
right to repayment of Tax which would otherwise have been
available to that person.
For the purposes of this definition of "Tax Liability", any
question of whether or not any relief, allowance, deduction,
credit or right to repayment of Tax has been lost or set off,
and if so, the date on which that loss or set-off took place,
shall be conclusively determined by the relevant person's
auditors.
"TAX ON OVERALL NET INCOME" means, in relation to a Lender, Tax
(other than Tax deducted or withheld from any payment) imposed
on the net profits of that Lender by the jurisdiction in which
its Lending Office or its head office is situated.
9.2.4 A relevant Borrower shall not be obliged to make a payment in
respect of an Increased Cost under this Clause 9.2:
(i) if and to the extent that the Increased Cost has been
compensated for by the payment of an amount in respect of
the Mandatory Cost Rate or the operation of Clause 10.9
(GROSSING-UP) or which would have been compensated but
for the operation of Clause 10.9.4; or
(ii) which is attributable to any breach by a Lender of any
law or legally binding requirement of any central bank or
other monetary, fiscal or other authority to which it is
subject.
9.2.5 If any Borrower is required to pay any amount to a Lender under
this Clause 9.2, then, without prejudice to that obligation and
so long as the circumstances giving rise to the relevant
Increased Cost are continuing and subject to the Guarantor
giving the Agent and that Lender not less than 10 days' prior
notice (which shall be irrevocable), the Borrowers may prepay
all, but not part, of that Lender's
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Participation in the Advances together with accrued interest on
the amount prepaid. Any such prepayment shall be subject to
Clause 24.1 (BREAKAGE COSTS INDEMNITY) On any such prepayment
the Commitment of the relevant Lender shall be automatically
cancelled.
9.2.6 A Lender intending to make a claim pursuant to this Clause 9.2
shall notify the Agent of the event by reason of which it is
entitled to do so setting out in reasonable detail the
computation of such claim whereupon the Agent shall notify the
Guarantor thereof provided that nothing herein shall require
such Lender to disclose any confidential information relating
to the funding of its obligations hereunder or generally.
9.3 MARKET DISRUPTION
If, in relation to a proposed Advance and a particular Interest Period:
9.3.1 there is no relevant offered quotation on the Telerate Service
as specified in paragraph (a) of the definition of "LIBOR" or
"EURIBOR", as the case may be, in Clause 1.1 (DEFINITIONS AND
INTERPRETATION), and the Agent determines that, because of
circumstances affecting the London interbank market generally,
reasonable and adequate means do not exist for ascertaining
"LIBOR" or "EURIBOR", as the case may be, for that Advance for
the relevant Interest Period; or
9.3.2 the Agent has been notified by close of business on the day
LIBOR or EURIBOR, as the case may be, is determined, by a group
of Lenders whose Commitments together exceed 50 per cent. of
the Total Revolving Credit Commitments or, as the case may be,
the Total 364 Day Commitments that in their opinion:
(i) matching deposits may not be available to them in the
London interbank market in the ordinary course of
business to fund their Participations in that Advance for
that Interest Period; or
(ii) the cost to them of obtaining matching deposits in the
London interbank market would be in excess of "LIBOR" or
"EURIBOR", as the case may be, for the relevant Interest
Period,
the Agent shall promptly notify the Guarantor and the Lenders of that
event and that Advance shall not be made. Instead, the Agent and the
Guarantor shall immediately enter into negotiations for a period of not
more than 30 days with a view to agreeing a substitute basis for
calculating the interest rate for the Advance or for funding the Advance
(whether in euros or another currency). Any substitute basis agreed by
the Agent (with the consent of all the Lenders) and the Guarantor shall
take effect in accordance with its terms and be binding on all the
Parties.
9.4 MITIGATION
9.4.1 If any circumstances exist or arise in respect of any Lender or
the Agent (including, for the avoidance of doubt, a Lender
ceasing to be a Qualifying Lender) which would, or upon the
giving of notice would, result in the operation of Clause 9.1
(ILLEGALITY), 9.2 (INCREASED COSTS), 9.3 (MARKET DISRUPTION) or
10.9 (GROSSING-UP) to the detriment of any Borrower, then that
Lender or, as the case may be, the Agent shall:
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(i) promptly upon becoming aware of those circumstances and
their results, notify the Agent (in the case of a Lender)
and the Guarantor; and
(ii) in consultation with the Agent (in the case of a Lender)
and the Guarantor, take reasonable steps to mitigate the
effects of those circumstances (including changing its
Lending Office or consulting with the Guarantor with a
view to transferring some or all of its rights and
obligations under this Agreement to another bank or other
financial institution acceptable to the Guarantor or
producing or filing any claim, notification or
information as may reasonably be required in order to
establish the availability of any exemption or
entitlement to refund in respect of the circumstances in
question) in a manner which will avoid the circumstances
in question and on terms acceptable to the Agent, the
Guarantor and as the case may require, that Lender,
provided that no Lender or the Agent shall be obliged to take
any steps which in its opinion would have an adverse effect on
its business or financial condition or the management of its
Tax affairs or cause it to incur any material costs or
expenses.
9.4.2 Nothing in this Clause 9.4 shall limit, reduce, affect or
otherwise qualify the rights of any Lender or the obligations
of the Guarantor under Clauses 9.1 (ILLEGALITY), 9.2 (INCREASED
COSTS), 9.3 (MARKET DISRUPTION) and 10.9 (GROSSING-UP).
9.5 CERTIFICATES
The certificate or notification of the Agent or, as the case may be, the
relevant Lender as to any of the matters referred to in this Clause 9
shall be in reasonable detail and shall be conclusive and binding on the
Borrowers except for any manifest error.
10 PAYMENTS
10.1 PLACE AND TIME
All payments by the Obligors or a Lender under this Agreement shall be
made to the Agent to its account at such office or bank in the principal
financial centre of the country of the currency concerned (or, in the
case of euros, London) at such time as the Agent may notify to the
Obligors or the Lenders for this purpose.
10.2 FUNDS
All payments to the Agent under this Agreement shall be made for value
on the due date in freely transferable and readily available funds.
10.3 DISTRIBUTION
10.3.1 Each payment received by the Agent under this Agreement for
another Party shall, subject to Clauses 10.3.2 and 10.3.3, be
made available by the Agent to that Party by payment (on the
date and in the currency and funds of receipt) to its account
with such office or bank in the principal financial centre of
the country of the relevant currency (or, in the case of euros,
in the principal financial centre of such of the Participating
Member States or London as the Agent may reasonably specify) as
it may notify to the Agent for this purpose by not less than 5
London Business Days' prior notice.
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10.3.2 The Agent may apply any amount received by it for a Borrower in
or towards payment (on the date and in the currency and funds
of receipt) of any amount due from that Borrower under this
Agreement or in or towards the purchase of any amount of any
currency to be so applied.
10.3.3 Where a sum is to be paid to the Agent under this Agreement for
another Party, the Agent is not obliged to pay that sum to that
Party until it has established that it has actually received
that sum. The Agent may, however, assume that the sum has been
paid to it in accordance with this Agreement, and, in reliance
on that assumption, make available to that Party a
corresponding amount. If the sum has not been made available
but the Agent has paid a corresponding amount to another Party,
that Party shall immediately on demand by the Agent refund the
corresponding amount together with interest on that amount from
the date of payment to the date of receipt, calculated at a
rate determined by the Agent to reflect its cost of funds.
10.3.4 Notwithstanding the provisions of this Clause 10.3, the Agent
shall not be liable to any Obligor or any Lender for the
failure, or the consequences of any failure, of any euro
cross-border payment system to effect same-day settlement to an
account of any Obligor or any Lender.
10.4 BUSINESS DAYS
If a payment under this Agreement is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
10.5 CURRENCY
In this Agreement,
10.5.1 all payments by a Borrower in respect of an Advance, whether of
interest or principal, shall be made in the currency (or the
denomination of the currency) in which that Advance is
denominated;
10.5.2 all payments relating to costs, losses, expenses or Taxes shall
be made in the currency in which the relevant costs, losses,
expenses or Taxes were incurred; and
10.5.3 any other amount payable under this Agreement shall, except as
otherwise provided, be made in euros.
10.6 ACCOUNTS AS EVIDENCE
Each Lender shall maintain in accordance with its usual practice an
account which shall, as between the Borrowers and that Lender, be PRIMA
FACIE evidence of the amounts from time to time advanced by, owing to,
paid and repaid to that Lender under this Agreement.
10.7 PARTIAL PAYMENTS
10.7.1 If the Agent receives a payment from or on behalf of an Obligor
insufficient to discharge all the amounts then due and payable
by that Obligor under this Agreement, the Agent shall apply
that payment towards the obligations of that Obligor under this
Agreement in the following order:
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(i) first, in or towards payment of any unpaid costs and
expenses of the Agent under this Agreement;
(ii) second, in or towards payment pro rata of any accrued
interest due by that Obligor but unpaid under this
Agreement;
(iii) third, in or towards payment pro rata of any principal
due by that Obligor but unpaid under this Agreement; and
(iv) fourth, in or towards payment pro rata of any other sum
due by that Obligor but unpaid under the Financing
Documents.
10.7.2 The Agent shall, if so directed by all the Lenders, vary the
order set out in Clauses 10.7.1(ii) to (iv).
10.7.3 Clauses 10.7.1 and 10.7.2 shall override any appropriation made
by any Borrower.
10.8 SET-OFF AND COUNTERCLAIM
All payments by any Obligor under this Agreement shall be made without
set-off or counterclaim.
10.9 GROSSING-UP
10.9.1 Subject to Clause 10.9.2, all sums payable to the Agent, the
Arranger, or any Lender pursuant to or in connection with any
Financing Document shall be paid in full free and clear of all
deductions or withholdings whatsoever except only as may be
required by law.
10.9.2 If any deduction or withholding is required by law in respect
of any payment due from an Obligor to the Agent or any Lender
pursuant to or in connection with any Financing Document that
Obligor shall:
(i) promptly, on becoming aware that it must make a tax
deduction (or if there is any change in the rate or the
basis of a tax deduction), notify the Agent accordingly
(if the Agent receives such notification from a Lender it
shall notify that Obligor);
(ii) ensure or procure that the deduction or withholding is
made and that it does not exceed the minimum legal
requirement therefor;
(iii) pay, or procure the payment of, the full amount deducted
or withheld to the relevant Taxation or other authority
in accordance with the applicable law;
(iv) increase the payment in respect of which the deduction or
withholding is required so that the net amount received
by the payee (which expression when used in this Clause
10.9.2 shall mean the Agent or any Lender) after the
deduction or withholding (and after taking account of any
further deduction or withholding which is required to be
made as a consequence of the increase) shall be equal to
the amount which the payee would have been entitled to
receive in the absence of any requirement to make any
deduction or withholding; and
(v) promptly deliver or procure the delivery to the relative
payee of receipts evidencing each deduction or
withholding which has been made.
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10.9.3 If the Agent is obliged to make any deduction or withholding
from any payment to any Lender (an "AGENCY PAYMENT") which
represents an amount or amounts received by the Agent from an
Obligor under this Agreement:
(i) that Obligor shall pay directly to that Lender such sum
(an "AGENCY COMPENSATING SUM") as shall, after taking
into account any deduction or withholding which that
Obligor is obliged to make from the agency compensating
sum, enable that Lender to receive, on the due date for
payment of the agency payment, an amount equal to the
agency payment which that Lender would have received in
the absence of any obligation to make any deduction or
withholding; and
(ii) the Agent shall use its reasonable endeavours to take the
action referred to in Clauses 10.9.2 (ii), (iii) and (v).
10.9.4 An Obligor shall not be required to pay an additional amount
under this Clause 10.9 to the extent that the payment in
respect of which the deduction or withholding is required is a
payment of interest on a Participation in an Advance and that
deduction or withholding is required on account of United
Kingdom Tax and:
(i) at the time that Participation was made, the Lender
making that Participation was not a Qualifying Lender
otherwise than as a consequence of a Change occurring
after the date of this Agreement (and the obligation to
deduct or withhold would not have arisen if that
Participation had been made by a Qualifying Lender; or
(ii) at the time when the interest is paid, the Lender for
whose account it is paid is not beneficially entitled to
it, or, being beneficially entitled to it, the Lender is
not within the charge to United Kingdom corporation tax
otherwise than as a consequence of a Change occurring
after the date of this Agreement (and the obligation to
deduct or withhold would not have arisen if the Lender
had been beneficially entitled to the interest and had
been within the charge to United Kingdom corporation tax
as respects it).
10.9.5 any Lender determines, in its absolute discretion, that it has
received, realised, utilised and retained a Tax benefit by
reason of any deduction or withholding in respect of which an
Obligor has made an increased payment or paid an agency
compensating sum under this Clause 10.9, that Lender shall,
provided that the Agent and each Lender have received all
amounts which are then due and payable by that Obligor under
this Agreement, pay to that Obligor (to the extent that that
Lender can do so without prejudicing the amount of the benefit
or repayment and the right of that Lender to obtain any other
benefit, relief or allowance which may be available to it) such
amount, if any, as that Lender, in its absolute discretion
shall determine, will leave that Lender in no worse position
than it would have been in if the deduction or withholding had
not been required, provided that:
(i) each Lender shall have an absolute discretion to time at
which and the order and manner in which it realises or
utilises any Tax benefit and shall not be obliged to
arrange its business or its Tax affairs in any particular
way in order to be eligible for any credit or refund or
similar benefit;
(ii) no Lender shall be obliged to disclose any information
regarding its business, Tax affairs or Tax computations;
- 29 -
(iii) if a Lender has made a payment to an Obligor pursuant to
the this Clause 10.9.5 on account of any Tax benefit and
it subsequently transpires that that Lender did not
receive that Tax benefit, or received a lesser Tax
benefit, that Obligor shall, on demand, pay to that
Lender such sum as that Lender may determine as being
necessary to restore its after tax position to that which
it would have been had no adjustment under this Clause
10.9.5 been made. Any sums payable by that Obligor to a
Lender under this Clause 10.9.5 shall be subject to
Clause 19.7 (INDEMNITY PAYMENTS).
10.9.6 No Lender shall be obliged to make any payment under Clause
10.9.5 if, by doing so, it would contravene the terms of any
applicable law or any notice, direction or requirement of any
governmental or regulatory authority (whether or not having the
force of law).
10.9.7 If an Obligor is required to make an increased payment for the
account of a Lender under Clause 10.9.2, then, without
prejudice to that obligation and so long as such requirement
exists and subject to the Guarantor giving the Agent and that
Lender not less than 10 days' prior notice (which shall be
irrevocable), the Borrowers may prepay all, but not part, of
that Lender's Participation in the Advances together with
accrued interest on the amount prepaid. Any such prepayment
shall be subject to Clause 24.1 (BREAKAGE COSTS INDEMNITY). On
any such prepayment the Commitment of the relevant Lender shall
be automatically cancelled.
10.10 LENDER CONFIRMATION
10.10.1 Each Lender warrants and represents that, as at the date of
this Agreement in relation to Advances to be made to a UK
Borrower, acting through its relevant Lending Office, it is a
Qualifying Lender.
10.10.2 Each Lender confirms that, if a Borrower requests that Lender
to complete any form or certificate, or to take any other
related action which would enable any deduction or withholding
on payments made by such Borrower to such Lender to be reduced
from the amount of deduction or withholding which it would
otherwise be required by law to make, and the completion of
such form or certificate or the carrying out of such action
would not, in the relevant Lender's opinion, prejudice its
business affairs, such Lender shall complete such form or
certificate or carry out such action promptly on it receiving
the relevant Borrower's written request so to do.
10.10.3 Each Lender confirms that, in respect of its Participation in
any Advance to a UK Borrower, if it ceases to be a Qualifying
Lender on or before the date when the Advance is made to the
relevant Borrower, or at any time is not beneficially entitled
to the interest received from such Borrower, or being
beneficially entitled to the interest, at any time is not
within the charge to UK corporation tax in respect of such
interest (in each case, for whatever reason), it shall promptly
notify the relevant Borrower, in writing of its change in
status.
11 GUARANTEE
11.1 GUARANTEE
Subject to and with the benefit of the provisions in Clause 11.2
(GUARANTEE PROVISIONS), the Guarantor hereby guarantees to the
Guaranteed Parties that it shall on demand pay in the
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currency in which the same falls due for payment under the terms of this
Agreement, all moneys which are now or at any time hereafter shall have
become due or owing by any of the Borrowers to any or all of the
Guaranteed Parties pursuant to this Agreement.
11.2 GUARANTEE PROVISIONS
11.2.1 The guarantee (the "GUARANTEE") given pursuant to this Clause
11 is a continuing security and shall remain in full force and
effect until all moneys, obligations and liabilities referred
to in Clause 11.1 (GUARANTEE) have been paid, discharged or
satisfied in full notwithstanding the liquidation or other
incapacity or any change in the constitution of any of the
Obligors or in the name and style of any of them or any
settlement of account or other matter whatsoever.
11.2.2 This Guarantee is in addition to and shall not merge with or
otherwise prejudice or affect or be prejudiced by any other
right, remedy, guarantee, indemnity or security and may be
enforced without first having recourse to the same or any other
xxxx, note, mortgage, charge, pledge or lien now or hereafter
held by or available to any Guaranteed Party.
11.2.3 Notwithstanding that this Guarantee ceases to be continuing for
any reason whatever any of the Guaranteed Parties may continue
any accounts of any of the Borrowers or open one or more new
accounts and the liability of the Guarantor hereunder shall not
be reduced or affected by any subsequent transactions or
receipts or payments into or out of any such accounts.
11.2.4 If any purported obligation or liability of any Borrower under
this Agreement is not or ceases to be valid or enforceable on
any ground whatsoever whether or not known to any Guaranteed
Party including but not limited to any defect in or want of
powers of any Borrower or irregular exercise thereof or lack of
authority by any person purporting to act on behalf of any
Borrower or any legal or other limitation (whether under the
Limitation Xxx 0000 or otherwise), disability, incapacity or
any change in the constitution of or any amalgamation,
reconstruction or liquidation of any Borrower, the Guarantor
shall nevertheless be liable to the Guaranteed Parties in
respect of that purported obligation or liability as if the
same were fully valid and enforceable and the Guarantor were
the principal debtor in respect thereof. The Guarantor hereby
agrees to keep the Guaranteed Parties fully indemnified in the
currency in which such purported obligation or liability arose
against all damages, losses, costs and expenses arising from
any failure of any Borrower to carry out any such purported
obligation or liability.
11.2.5 The liability of the Guarantor shall not be affected nor shall
this Guarantee be discharged or diminished by reason of:
(i) any present or future xxxx, note, guarantee, indemnity,
mortgage, charge, pledge, lien or other security or right
or remedy held by or available to all or any of the
Guaranteed Parties being or becoming wholly or in part
void, voidable or unenforceable on any ground whatsoever
or by all or any of the Guaranteed Parties from time to
time dealing with, exchanging, varying, realising,
releasing or failing to perfect or enforce any of the
same; or
(ii) all or any of the Guaranteed Parties compounding with,
discharging, releasing or varying the liability of or
granting any time, indulgence or concession to any
Borrower or any other person or renewing, determining,
- 31 -
varying or increasing any xxxx, promissory note or other
negotiable instrument, accommodation, facility or
transaction in any manner whatsoever or concurring in,
accepting or varying any compromise, arrangement or
settlement or omitting to claim or enforce payment from a
principal debtor or any other person; or
(iii) any act or omission which would not have discharged or
affected the liability of the Guarantor had it been a
principal debtor instead of guarantor or by anything done
or omitted which but for this provision might operate to
exonerate the Guarantor.
11.2.6 The Guarantor warrants to the Guaranteed Parties that it has
not taken or received and undertakes not to take or receive the
benefit of any security from any Borrower in connection with
this Guarantee. If any such security is taken or the Guarantor
receives the benefit of the same the Guarantor declares that
such security and all moneys at any time received in respect
thereof shall be held on trust for the Guaranteed Parties to be
applied in discharge of the liabilities of the Guarantor to the
Guaranteed Parties under this Agreement.
11.2.7 Until all amounts owing under this Agreement have been paid,
discharged or satisfied in full, the Guarantor waives all
rights of subrogation and indemnity against any Borrower and
agrees not to share in any security held or moneys received by
any Guaranteed Party on account of such liabilities or, unless
so instructed by the Agent, (acting on the instructions of the
Majority Lenders) to claim or prove in competition with any
Guaranteed Party in the liquidation of any Borrower in respect
of any moneys paid by the Guarantor to any Guaranteed Party
hereunder. If the Guarantor receives any payment or other
benefit or exercises any set-off or counterclaim or otherwise
acts in breach of this Clause anything so received and any
benefit derived directly or indirectly by the Guarantor
therefrom shall be held in trust for the Guaranteed Parties to
be applied in discharge of the liability of the Guarantor to
the Guaranteed Parties hereunder.
11.2.8 Any money received in connection with this Guarantee may be
placed to the credit of a suspense account with a view to
preserving the rights of the Guaranteed Parties to prove for
the whole of their claims against any Borrower or any other
person liable or may be applied by the Guaranteed Parties in or
towards satisfaction of such of the moneys, obligations or
liabilities of the relevant Borrower hereby guaranteed as the
relevant Guaranteed Party in its absolute discretion may from
time to time conclusively determine.
11.2.9 If this Guarantee is determined or called in by demand made by
the Agent, then the Guaranteed Parties may open a new account
or accounts with any Borrower. If the Guaranteed Parties do not
open a new account or accounts they shall nevertheless be
treated as if they had done so at the time of determination or
calling in and as from that time all payments made to the
Guaranteed Parties shall be credited or be treated as having
been credited to the new account or accounts and shall not
operate to reduce the amount for which this guarantee is
available as security at that time.
11.2.10 Any release, discharge or settlement between the Guarantor and
the Guaranteed Parties shall be conditional upon no security
disposition or payment to any of the Guaranteed Parties by any
Borrower or any other person being void, set aside or ordered
to be refunded pursuant to any enactment or law relating to
bankruptcy,
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liquidation or insolvency or for any reason whatever and if
such condition shall not be fulfilled the Guaranteed Parties
shall be entitled to enforce this Guarantee subsequently as if
such release, discharge or settlement had not occurred and any
such payment had not been made.
11.2.11 The Guaranteed Parties shall not be obliged before taking steps
to enforce this Guarantee:
(i) to take action or obtain judgment in any court against
any Borrower or any other person;
(ii) to make or file any claim in a bankruptcy or liquidation
of any Borrower or any other person; or
(iii) to make, enforce or seek to enforce any claim against any
Borrower or any other person under any security or other
document, agreement or arrangement.
12 REPRESENTATIONS AND WARRANTIES
12.1 REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants to each Lender and the Agent that:
12.1.1 STATUS: It is a US corporation duly formed and in good standing
under the laws of the jurisdiction of its place of
incorporation, and each other Group Company is a limited
company duly incorporated under the laws of the jurisdiction of
the place of its incorporation, and it possesses the capacity
to xxx and be sued in its own name and has the power to carry
on its business and to own its property and other assets except
in the case of any Group Company which is not an Obligor, where
failure to possess such capacity or to have such power could
not reasonably be expected to have a Material Adverse Effect.
12.1.2 POWERS AND AUTHORITY: Each Obligor has power to execute,
deliver and perform its obligations under the Financing
Documents and to carry out the transactions contemplated by
those documents and all necessary corporate, shareholder and
other action has been or will be taken to authorise the
execution, delivery and performance of the same.
12.1.3 BINDING OBLIGATIONS: Subject to the Reservations, the
obligations of each Obligor under the Financing Documents
constitute its legal, valid, binding and enforceable
obligations.
12.1.4 CONTRAVENTIONS: The execution, delivery and performance by each
Obligor of the Financing Documents does not:
(i) contravene any applicable law or regulation (including
Regulations U and X) or any order of any governmental or
other official authority, body or agency or any judgment,
order or decree of any court having jurisdiction over it
(for the avoidance of doubt, the Guarantor is not
representing or warranting compliance by the Lenders of
Regulation U);
(ii) conflict with, or result in any breach of any of the
terms of, or constitute a default under, any agreement or
other instrument to which it is a party or any licence or
other authorisation to which it is subject or by which it
or any
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of its property is bound to the extent that, in any case,
the same has or could reasonably be expected to have, a
Material Adverse Effect; or
(iii) contravene or conflict with the provisions of its
constitutional documents.
12.1.5 NO DEFAULT: No Default has occurred or is continuing on the
date of this Agreement.
12.1.6 NO BREACH: No Group Company is in breach of, or in default
under, any agreement to which it is a party or which is binding
on it or any of its assets, in a manner or to an extent which
could reasonably be expected to have a Material Adverse Effect.
12.1.7 LITIGATION: No action, litigation, arbitration, administrative
proceeding or governmental inquiry has been commenced or is
pending, or, to the knowledge of their officers, threatened,
against any Group Company or its assets which, if decided
adversely, could reasonably be expected to have a Material
Adverse Effect.
12.1.8 ACCOUNTS:
(i) Each of the latest Accounts required to be delivered
under Clause 13.1.1 (ACCOUNTS) is prepared in accordance
with GAAP and fairly presents the financial position of
the relevant company as at the date of such Accounts and
the results of its operations and its cash flows for the
annual period ended on such date; and
(ii) Each of the latest unaudited quarterly consolidated
statements of income, stockholders' equity and cash flows
of the Guarantor delivered under Clause 13.1.2 (QUARTERLY
FINANCIAL STATEMENTS) fairly presents the consolidated
financial position of the Guarantor as at the date of
such quarterly financial statements and the consolidated
results of operations and cash flows for the relevant
quarterly period, subject to normal year-end audit
adjustments and the absence of footnotes.
12.1.9 ENCUMBRANCES: No Encumbrance other than a Permitted Encumbrance
exists over all or any part of the assets of any Group Company.
12.1.10 NO ENCUMBRANCES CREATED: The execution of the Financing
Documents by each Obligor and the exercise of each of their
respective rights and the performance of each of their
respective obligations under the Financing Documents will not
result in the creation of, or any obligation to create, any
Encumbrance over or in respect of any of their assets.
12.1.11 AUTHORISATIONS: All applicable authorisations, approvals,
licences, consents, filings, registrations, payments of duties
or taxes and notarisations required:
(i) for the conduct of the business, trade and ordinary
activities of each Group Company or the ownership of
their respective assets (except to the extent that
failure to make pay or obtain the same could not
reasonably be expected to have a Material Adverse
Effect);
(ii) for the performance and discharge of the obligations of
each Obligor under the Financing Documents to which it is
a party; and
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(iii) in connection with the execution, delivery, validity and,
subject to the Reservations, enforceability or
admissibility in evidence of the Financing Documents,
are in full force and effect.
12.1.12 COMPLIANCE WITH LAWS: Each Group Company has complied in all
material respects with all applicable statutes, rules,
regulations, orders and restrictions of any government or any
body or agency thereof, having jurisdiction over the conduct of
its business or the ownership of its assets, except where the
failure so to comply could not reasonably be expected to have a
Material Adverse Effect.
12.1.13 NO MATERIAL ADVERSE CHANGE: Since 31 December 2000, no event
has occurred which has had, or could be reasonably expected to
have, a Material Adverse Effect.
12.1.14 TAXES: Each Group Company has complied in all material respects
with all Taxation laws in all jurisdictions in which it is
subject to Taxation and has paid all Taxes due and payable by
it and no claims are being asserted against it in respect of
Taxes which could reasonably be expected to have a Material
Adverse Effect except for assessments in relation to the
ordinary course of its business or claims contested in good
faith and in respect of which adequate provision has been made
and disclosed in the latest Accounts or other information
delivered to the Agent under this Agreement.
12.1.15 ERISA:
(i) The Unfunded Liability of all Single Employer Plans does
not in the aggregate exceed US$85,000,000;
(ii) neither the Guarantor nor any other member of the
Controlled Group maintains, or is obliged to contribute
to, any Multiemployer Plan or has incurred, or is
reasonably expected to incur, any withdrawal liability to
any Multiemployer Plan;
(iii) each Plan complies with all applicable requirements of
law and regulations;
(iv) neither the Guarantor nor any member of the Controlled
Group has, with respect to any Plan, failed to make any
contribution or pay any amount required under Section 412
of the Code or Section 302 of ERISA or the terms of such
Plan;
(v) there are no pending or, to the knowledge of the
Guarantor, threatened claims, actions, investigations or
lawsuits against any Plan, any fiduciary thereof, or the
Guarantor or any member of the Controlled Group with
respect to a Plan;
(vi) neither the Guarantor nor any member of the Controlled
Group has engaged in any prohibited transaction (as
defined in Section 4975 of the Code or Section 406 of
ERISA) in connection with any Plan which would subject
such person to any liability;
(vii) within the last five years neither the Guarantor nor any
member of the Controlled Group has engaged in a
transaction which resulted in a Single Employer Plan with
an Unfunded Liability being transferred out of the
Controlled Group; and
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(viii) no Termination Event has occurred or is reasonably
expected to occur with respect to any Plan which is
subject to Title IV of ERISA,
provided that the representation and warranty contained in this
Clause 12.1.15 shall only be breached if the circumstances
relating to any actual breach have or could reasonably be
expected to have, a Material Adverse Effect.
12.1.16 FEDERAL RESERVE REGULATIONS:
No part of the proceeds of any Advance will be used, directly
or indirectly, to purchase or carry any Margin Stock within the
meaning of Regulation U.
12.1.17 INVESTMENT COMPANY AND PUBLIC UTILITY HOLDING COMPANY: No Group
Company is, or after giving effect to any Advance will be, an
"investment company" or a company "controlled" by an
"investment company" within the meaning of the US Investment
Company Act of 1940 and the Guarantor is not subject to
regulation under the US Public Utility Holding Company Act of
1935.
12.1.18 OWNERSHIP OF PROPERTIES:
(i) Each Group Company has a subsisting leasehold or freehold
interest in, or good and marketable title, free of all
Encumbrances, other than Permitted Encumbrances, to all
of the properties and assets reflected in the Accounts as
being owned by it, except for assets sold, transferred or
otherwise disposed of in the ordinary course of business,
or as required by or in connection with the Demerger
provided that such sale, transfer or other disposal in
connection with the Demerger would not have a Material
Adverse Effect, since the date thereof; and
(ii) the relevant Group Companies own or possess rights to use
all licences, patents, patent applications, copyrights,
service marks, trademarks and trade names necessary to
continue to conduct their business as heretofore
conducted, and no such licence, patent or trademark has
been declared invalid, been limited by order of any court
or by agreement or is the subject of any infringement,
interference or similar proceeding or challenge, except
for proceedings and challenges which could not reasonably
be expected to have a Material Adverse Effect.
12.1.19 MATERIAL AGREEMENTS: No Group Company is a party to any
agreement or instrument or subject to any corporate restriction
which could reasonably be expected to have a Material Adverse
Effect or which restricts or imposes conditions upon the
ability of any Group Company to (i) pay dividends or make other
distributions on its issued share capital, (ii) make loans or
advances to the Guarantor or (iii) repay loans or advances from
the Guarantor where, in the cases of (i), (ii) and (iii), such
restriction or imposition has or could reasonably be expected
to have a material adverse effect on the ability of the
Guarantor to comply with its payment obligations under the
Financing Documents.
12.1.20 ENVIRONMENTAL: Each Group Company has and has at all times
complied with all applicable Environmental Law, non-compliance
with which could reasonably be expected to have a Material
Adverse Effect, every consent, authorisation, licence or
approval required under or pursuant to any Environmental Law by
each Group Company in connection with the conduct of its
business and the ownership, use, exploitation or occupation of
its assets the absence or lack of which could
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reasonably be expected to have a Material Adverse Effect, has
been obtained and is in full force and effect, there has been
no default in the observance of the conditions and restrictions
(if any) imposed in, or in connection with, any of the same
which default could reasonably be expected to have a Material
Adverse Effect, and no circumstances have arisen (i) which
would entitle any person to revoke, suspend, amend, vary,
withdraw or refuse to amend any of the same or (ii) which might
give rise to a claim against any Group Company which could
reasonably be expected to have a Material Adverse Effect having
regard to the cost to that Group Company of meeting such a
claim.
12.1.21 INSURANCE: The Group as a whole maintains, with financially
sound and reputable insurance companies, insurance on its
assets in such amounts and covering such risks as is consistent
with sound business practice.
12.1.22 INSURANCE LICENCES: No material licence, permit or
authorisation of any Group Company to engage in the business of
insurance or insurance-related activities is the subject of a
proceeding for suspension or revocation, except where such
suspension or revocation would not individually or, when
aggregated, have a Material Adverse Effect.
12.1.23 DISCLOSURE:
(i) None of the written information, exhibits or reports
furnished by any Group Company to the Agent or to any
Lender in connection with the negotiation of the
Financing Documents or representations or warranties of
any Group Company contained in the Financing Documents,
or any other document, certificate or written statement
furnished to the Agent or the Lenders by or on behalf of
any Group Company for use in connection with the
transactions contemplated by this Agreement, contains any
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
contained herein or therein not misleading in light of
the circumstances in which the same were made; and
(ii) as of the date hereof, there is no fact known to the
Guarantor (other than matters of a general economic
nature) that has had or could reasonably be expected to
have a Material Adverse Effect and that has not been
disclosed herein or in such other information, documents,
certificates and statements furnished to the Lenders for
use in connection with the transactions contemplated by
this Agreement.
12.1.24 INFORMATION MEMORANDUM: The factual information contained in
the Information Memorandum was, at the date of the Information
Memorandum, true and accurate in all material respects and not
misleading in any material respect, there are no other facts
the omission of which would make any fact or statement in the
Information Memorandum misleading in any material respect and
nothing has occurred which would render any fact or statement
in the Information Memorandum untrue or misleading in any
material respect.
12.2 REPETITION
The representations and warranties in Clause 12.1 (REPRESENTATIONS AND
WARRANTIES) shall survive the execution of this Agreement and shall be
deemed to be repeated by the Guarantor:
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12.2.1 on the first Drawdown Date; and
12.2.2 (other than those made under Clause 12.1.5 (NO DEFAULT), 12.1.9
(ENCUMBRANCES), 12.1.10 (NO ENCUMBRANCES CREATED) 12.1.11
(AUTHORISATIONS), 12.1.13 (NO MATERIAL ADVERSE CHANGE), 12.1.14
(TAXES), 12.1.20 (ENVIRONMENTAL), 12.1.21 (INSURANCES), 12.1.23
(DISCLOSURE) and 12.1.24 (INFORMATION PACKAGE) inclusive) on
(i) each other Drawdown Date, and (ii) the first day of each
Interest Period for each Term Advance,
in each case, as if made with reference to the facts and circumstances
existing at that time.
13 UNDERTAKINGS
13.1 INFORMATION UNDERTAKINGS
The Guarantor undertakes that during the Facility Period it shall,
unless the Agent (acting on the instructions of the Majority Lenders)
otherwise agrees:
13.1.1 ACCOUNTS: As soon as the same become available (and in any
event, in the case of the Guarantor, within 90 days after the
end of each of its Financial Years and, in the case of each
other Obligor, within the time limit provided by law for the
filing of the relevant Accounts), deliver to the Agent in
sufficient copies for all the Lenders the Accounts of each
Obligor for each such Financial Year together with, where
appropriate, a copy of the management letter (if any) addressed
by the auditors to the directors of the relevant Obligor in
connection with its auditing of the relevant Accounts as soon
as reasonably practicable after receipt of the letter by such
Obligor.
13.1.2 QUARTERLY FINANCIAL STATEMENTS: As soon as the same become
available (and in any event within 45 days after the end of
each consecutive period of 3 months ending on 31 March, 30 June
or 30 September during each of its Financial Years) deliver to
the Agent in sufficient copies for all the Lenders, unaudited
consolidated quarterly statements of income, stockholders'
equity and cash flows of the Guarantor as at the end of, and
for the quarterly period ending on, such quarterly financial
date certified by the chief financial officer of the Guarantor
as fairly presenting the consolidated financial position of the
Guarantor as at, and for the quarterly period ending on, such
quarterly financial date, subject to normal year-end audit
adjustments and the absence of footnotes.
13.1.3 PLANS:
(i) In any event no later than the date on which the IRS Form
5500 is filed (or required to be filed, without regard to
extensions for time to file) for the Plan, deliver a
statement of the Unfunded Liabilities of each Single
Employer Plan, certified as correct by an actuary
enrolled under ERISA; and
(ii) as soon as possible and in any event within 10 days after
the Guarantor knows that any Termination Event has
occurred with respect to any Plan, deliver a statement,
signed by the chief financial officer of the Guarantor,
describing such Termination Event and the action which
the Guarantor proposes to take with respect thereto.
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13.1.4 SHAREHOLDERS' DOCUMENTS: Deliver to the Agent in sufficient
copies for all the Lenders all documents despatched by it to
its shareholders or its creditors generally at the same time as
they are despatched.
13.1.5 SECURITIES AND EXCHANGE COMMISSION: At the same time as they
are filed, copies of all registration statements and annual,
quarterly, monthly or other regular reports which any Group
Company files with the US Securities and Exchange Commission
other than Form S-8 (or successor forms) registration
statements and other registration statements or reports
relating to employee stock programs.
13.1.6 COMPLIANCE CERTIFICATES: When delivering its Accounts and
management accounts pursuant to Clauses 13.1.1 (ACCOUNTS) and
13.1.2 (MANAGEMENT ACCOUNTS), deliver to the Agent a
certificate signed by the chief financial officer or
vice-president or controller of the Guarantor showing
calculations as to compliance with Clause 14 (FINANCIAL
UNDERTAKINGS) and certifying that no Default or Potential
Default is outstanding or, if a Default or Potential Default is
outstanding, specifying the Default or Potential Default and
the steps, if any, being taken to remedy it provided that, in
relation to any certificate delivered together with the
Guarantors' Accounts, such certificate shall include a
certification from the auditors of the Guarantor as to the
matters set out in such certificate.
13.1.7 INFORMATION ON REQUEST: Promptly following the Agent's request,
supply to the Agent such information, documents and records in
relation to the business, condition, operations and prospects
of any Group Company as the Agent may from time to time
reasonably require.
13.1.8 GAAP: Ensure that all Accounts and other financial information
submitted to the Agent have been prepared in accordance with
GAAP.
13.1.9 DEFAULT, LITIGATION, ETC: Promptly, upon becoming aware of the
same, notify the Agent of:
(i) any Default or Potential Default;
(ii) litigation, arbitration or administrative proceeding
commenced against any Group Company which may be
reasonably expected to have a Material Adverse Effect;
(iii) any change in the Debt Rating Level;
(iv) completion of the Demerger; and
(v) any occurrence (including any third party claim or
liability but other than of a general economic or
political nature) which could reasonably be expected to
have a Material Adverse Effect.
13.2 POSITIVE UNDERTAKINGS
The Guarantor undertakes that during the Facility Period it shall, and
it shall procure that each Group Company shall, unless the Agent (acting
on the instructions of the Majority Lenders) otherwise agrees:
13.2.1 PAY TAXES: Pay and discharge all Taxes and governmental charges
payable by or assessed upon it in accordance with good business
practice unless, and only to the extent that, such Taxes and
charges shall be contested in good faith by appropriate
proceedings, pending determination of which payment may
lawfully be withheld,
- 39 -
and there shall be set aside adequate reserves with respect to
any such Taxes or charges so contested in accordance with GAAP.
13.2.2 INSURANCE: Procure that the Group as a whole maintains with
financially sound and reputable insurance companies, insurance
on its assets in such amounts and covering such risks as is
consistent with sound business practice.
13.2.3 AUTHORISATIONS: Obtain, maintain and comply with the terms of
any authorisation, approval, licence, consent, exemption,
clearance, filing or registration required:
(i) for the conduct of its business, trade and ordinary
activities save to the extent that failure to obtain,
maintain or comply with the same could reasonably be
expected not to have a Material Adverse Effect; and
(ii) to enable it to perform its obligations under, or for the
validity and, subject to the Reservations, enforceability
or admissibility in evidence of, any Financing Document.
13.2.4 CONDUCT OF BUSINESS: Carry on and conduct its business in
substantially the same manner and in substantially the same
field of business as it is presently conducted provided that
the occurrence of the Demerger and provision of the
Transitional Services shall not cause a breach of this
provision.
13.2.5 COMPLIANCE WITH LAWS: Comply with all laws (including
Environmental Law), rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be
subject, the failure to comply with which could reasonably be
expected to have a Material Adverse Effect.
13.2.6 MAINTENANCE OF ASSETS: Do all things necessary to maintain,
preserve, protect and keep its assets in good repair, working
order and condition, and make all necessary and proper repairs,
renewals and replacements which are required in accordance with
good business practice so that its business carried on in
connection therewith may be properly conducted at all times.
13.2.7 ACCESS: Upon reasonable notice being given to the Guarantor by
the Agent, permit the Agent and the Lenders and any person
(being an accountant, auditor, solicitor, valuer or other
professional adviser of the Agent) authorised by the Agent or
Lender to have upon its reasonable request and at all
reasonable times during normal business hours, access to any of
the assets, premises, accounting books and records of any Group
Company and to discuss the affairs, finances and accounts of
any Group Company with, and to be advised as to the same by,
their respective officers at such reasonable times and
intervals as the Agent or Lenders may designate.
13.2.8 ERISA:
(i) Fulfil, and cause each member of the Controlled Group to
fulfil, its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan
except where failure to fulfil such obligations
individually or in aggregate would not have a Material
Adverse Effect; and
(ii) comply, and cause each member of the Controlled Group to
comply, with all applicable provisions of ERISA and the
Code with respect to each Plan, except where such failure
to comply individually or in aggregate would not have a
Material Adverse Effect; and
- 40 -
(iii) not, and not permit any member of the Controlled Group
to, (i) seek a waiver of the minimum funding standards
under ERISA, (ii) terminate or withdraw from any Plan or
(iii) take any other action with respect to any Plan
which would reasonably be expected to entitle the PBGC to
terminate, impose liability in respect of, or cause a
trustee to be appointed to administer, any Plan, unless
the actions or events described in (i), (ii) or (iii)
above individually or in the aggregate would not have a
Material Adverse Effect.
13.2.9 RANKING OF OBLIGATIONS: Ensure that its obligations under the
Financing Documents shall at all times rank at least PARI PASSU
with all its other present and future unsecured and
unsubordinated Indebtedness except for any obligations which
are mandatorily preferred by law and not by contract.
13.3 NEGATIVE UNDERTAKINGS
The Guarantor undertakes that during the Facility Period it shall not,
and it shall procure that none of the Group Companies shall, unless the
Agent (acting on the instructions of the Majority Lenders) otherwise
agrees:
13.3.1 USE OF PROCEEDS: Use any of the proceeds of the Advances to
purchase or carry any Margin Stock or to finance the
acquisition of any company or other entity which has not been
approved and recommended by the board of directors (or
functional equivalent thereof) of such company or other entity.
13.3.2 DIVIDENDS: In respect of the Guarantor only, so long as any
Default has occurred and is continuing declare or pay any
dividends or other distribution in relation to its capital
stock or repay or prepay, redeem or purchase or otherwise
acquire or retire any of its capital stock or any options or
other rights in respect thereof at any time outstanding other
than any dividend, distribution, repayment, prepayment,
redemption, purchase, retirement or other option contemplated
by or required in connection with the Demerger provided that no
such declaration or payment would have a Material Adverse
Effect.
13.3.3 MERGER: Save in respect of any transaction or step contemplated
by or required in connection with the Demerger provided that no
such transaction or step would have a Material Adverse Effect,
in respect of any Obligor enter into any amalgamation,
demerger, merger or reconstruction other than in relation to an
Obligor (not being the Guarantor) where:
(i) the relevant Obligor is the continuing or surviving
entity; and
(ii) the amalgamation, demerger, merger or reconstruction does
not constitute a Default; and
(iii) the Agent receives an opinion in terms satisfactory to it
and from counsel approved by it to the effect that after
the relevant amalgamation, demerger, merger or
reconstruction, the relevant Obligor remains bound by the
terms of this Agreement.
13.3.4 NEGATIVE PLEDGE: Create or permit to subsist any Encumbrance
over any of its assets other than Permitted Encumbrances.
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13.3.5 AFFILIATES: Enter into any transaction (including, without
limitation, the purchase or sale of any asset or service) with,
or make any payment or transfer to, any Affiliate other than
transactions, payments or transfers:
(i) between the Guarantor and any Wholly-Owned Subsidiary of
the Guarantor or between Wholly-Owned Subsidiaries of the
Guarantor; or
(ii) in the ordinary course of the day to day business, and
pursuant to the reasonable requirements, of the relevant
Group Company's business and in accordance with good
business practice; or
(iii) contemplated by or required in connection with the
Demerger or the Transitional Services provided that no
such transaction, payment or transfer would have a
Material Adverse Effect.
13.3.6 CHANGE IN FINANCIAL YEAR: In respect of the Guarantor only
change its Financial Year to end on any date other than 31
December of each year.
13.3.7 INCONSISTENT AGREEMENTS: Enter into any indenture, agreement,
instrument or other arrangement which:
(i) directly or indirectly prohibits or restrains, or has the
effect of prohibiting or restraining, or imposes
materially adverse conditions upon the incurrence of the
obligations of the Obligors under the Financing
Documents, the amending of the Financing Documents or the
ability of any Subsidiary of the Guarantor to (1) pay
dividends or make other distributions on its issued share
capital, (2) make loans or advances to the Guarantor, or
(3) repay loans or advances from the Guarantor where, in
the cases of (1), (2) and (3), such prohibition,
restraint or imposition has, or could reasonably be
expected to have, a material adverse effect on the
ability of the Guarantor to comply with its payment
obligations under the Financing Documents; or
(ii) contains any provision which would be violated or
breached by the making of Advances or by the performance
by any Obligor of any of its obligations under any
Financing Document.
14 FINANCIAL UNDERTAKINGS
14.1 MINIMUM NET WORTH
14.1.1 The Guarantor shall at all times maintain a Net Worth of at
least $2,000,000,000.
14.1.2 If the Demerger has not been completed by 30 September 2002,
the Guarantor shall at all times from 1 October 2002 maintain a
Net Worth of at least $2,500,000,000.
14.2 EBITDA TO CONSOLIDATED INTEREST EXPENSE
The Guarantor shall ensure that the ratio of EBITDA to Consolidated
Interest Expense for any Relevant Period will not be less than 4 to 1.
14.3 FINANCIAL UNDERTAKING CALCULATION
For the purposes of this Clause 14, Borrowings, EBITDA and the Net Worth
of the Guarantor shall be determined by reference to the appropriate
quarterly management
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accounts and, once delivered, the Accounts, in each case, most recently
provided to the Agent under Clauses 13.1.1 (ACCOUNTS) and 13.1.2
(MANAGEMENT ACCOUNTS).
15 DEFAULT
15.1 DEFAULT
Each of the following shall be a Default:
15.1.1 NON-PAYMENT: An Obligor does not pay within 5 days of the
relevant due date any amount payable by it under any Financing
Document at the place at and in the currency and funds in which
it is expressed to be payable.
15.1.2 FINANCIAL UNDERTAKINGS: Any requirement of Clause 14 (FINANCIAL
UNDERTAKINGS) is not satisfied.
15.1.3 OTHER DEFAULTS: The Guarantor breaches any of its obligations
under any Financing Document (other than the obligations
referred to in Clause 15.1.1 (NON-PAYMENT) and Clause 15.1.2
(FINANCIAL UNDERTAKINGS)) and, if that breach is capable of
remedy, it is not remedied within 20 days after notice of that
breach has been given by the Agent to the Guarantor.
15.1.4 BREACH OF REPRESENTATION OR WARRANTY: Any representation,
warranty or statement made or deemed to be repeated by the
Guarantor under or in connection with any Financing Document or
in any document delivered by or on behalf of any Obligor under
or in connection with any Financing Document is incorrect in
any respect when made or deemed to have been repeated.
15.1.5 UNLAWFULNESS OR REPUDIATION: It is unlawful for any Obligor to
perform or comply with, or any Obligor repudiates, any of its
obligations under any Financing Document.
15.1.6 CROSS-ACCELERATION: Any Indebtedness of all or any of the Group
Companies in excess of, in aggregate, $25,000,000:
(i) is not paid when due (taking into account any originally
applicable grace period); or
(ii) is declared to be or otherwise becomes due and payable
prior to its specified maturity by reason of an event of
default, default or similar culpable occurrence on the
part of the relevant Group Company.
15.1.7 CROSS-DEFAULT:
(i) at any time when any creditor or creditors of all or any
of the Group Companies has the benefit of a Cross Default
Provision (other than where such Cross Default Provision
is contained in a document entered into by a company or
other entity which is acquired by a Group Company after
the date of this Agreement and such Cross Default
Provision ceases to exist within one month of such
acquisition); or
(ii) if the US Loan Agreement Number 1 lenders or the US Loan
Agreement Number 2 lenders amend or have amended the US
Loan Agreement Number 1 or the US Loan Agreement Number
2, as the case may be, to remove the Cross Default
Provision contained in that agreement as at the date of
this Agreement at a time when the Guarantor does not have
a credit
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rating of at least "A3" (or better) from Moody's and
"AA-" (or better) from S & P, and subsequently,
any creditor of all or any of the Group Companies becomes
entitled to declare any Indebtedness of all or any of the Group
Companies in excess of, in aggregate $25,000,000 due and
payable prior to its specified maturity.
15.1.8 ATTACHMENT OR DISTRESS: A creditor or encumbrancer attaches or
takes possession of, or a distress, execution, sequestration or
other process is levied or enforced upon or sued out against a
Substantial Portion of the assets of the Group and such process
is not discharged within 28 days.
15.1.9 UNDISCHARGED JUDGMENT: Any Group Company fails within 30 days
to pay, bond, or otherwise discharge any judgment or order for
the payment of an amount in excess of $25,000,000 (or multiple
judgments or orders for the payment of an aggregate amount of
$50,000,000) unless such judgment (or judgments) are being
contested in good faith and no enforcement actions have been
commenced in relation thereto.
15.1.10 INABILITY TO PAY DEBTS: Any Group Company (other than a Dormant
Subsidiary):
(i) suspends payment of its debts or is unable or admits its
inability to pay its debts as they fall due; or
(ii) begins negotiations with any creditor with a view to the
readjustment or rescheduling of any of its Indebtedness;
or
(iii) proposes or enters into any composition or other
arrangement for the benefit of its creditors generally or
any class of creditors.
15.1.11 INSOLVENCY PROCEEDINGS: Any person takes any action or any
legal proceedings are started or other procedural steps taken
(including the presentation of a petition) for:
(i) any Group Company (other than a Dormant Subsidiary) to be
adjudicated or found insolvent; or
(ii) the winding-up or dissolution of any Group Company other
than (A) in respect of a Dormant Subsidiary, (B) in
connection with a solvent reconstruction, the terms of
which have been previously approved in writing by the
Majority Lenders, (C) (excluding the Guarantor)
contemplated by or required in connection with the
Demerger provided that no such winding up or dissolution
would be reasonably likely to have a Material Adverse
Effect or (D) a winding-up petition which is frivolous or
vexatious and which is, in any event, discharged within
21 days of its presentation and before it is advertised;
or
(iii) the appointment of a trustee, receiver, administrative
receiver or similar officer in respect of (A) any Group
Company or (B) a Substantial Portion of the assets of the
Group.
15.1.12 ADJUDICATION OR APPOINTMENT: Any adjudication, order or
appointment is made under or in relation to any of the
proceedings referred to in Clause 15.1.10 (INABILITY TO PAY
DEBTS) or Clause 15.1.11 (INSOLVENCY PROCEEDINGS).
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15.1.13 ADMINISTRATION ORDER: (other than an application which is
frivolous or vexatious and which is, in any event, discharged
within 21 days of being made), an application is made to the
court for an administration order under the Insolvency Xxx 0000
with respect to any Group Company (other than a Dormant
Subsidiary)
15.1.14 ANALOGOUS PROCEEDINGS: Any event occurs or proceeding is taken
with respect to any Group Company (other than a Dormant
Subsidiary) in any jurisdiction to which it is subject which
has an effect equivalent or similar to any of the events
mentioned in Clause 15.1.8 (ATTACHMENT OR DISTRESS), 15.1.10
(INABILITY TO PAY DEBTS), 15.1.11 (INSOLVENCY PROCEEDINGS),
15.1.12 (ADJUDICATION OR APPOINTMENT), 15.1.13 (ADMINISTRATION
ORDER).
15.1.15 EXPROPRIATION: Any court, government or government agency shall
condemn, seize or otherwise appropriate, or take custody or
control of (each an "EXPROPRIATION"), all or any portion of the
assets of any Group Company which, when taken together with all
other assets of the Group Companies so condemned, seized,
appropriated or taken custody or control of, during the 12
month period ending with the month in which any such
Expropriation occurs, constitutes a Substantial Portion.
15.1.16 QUALIFICATION OF ACCOUNTS: The auditors of the Guarantor issue
any qualification in respect of the Accounts of the Guarantor
for any of its Financial Years where the circumstances to which
such qualification relates have, or could reasonably be
expected to have, a Material Adverse Effect.
15.1.17 BORROWERS: Any of the Borrowers is not, or ceases to be, a
Wholly-Owned Subsidiary of the Guarantor.
15.2 ACCELERATION
If a Default occurs and remains unremedied the Agent may, and shall if
so instructed by the Majority Lenders, by notice (a "DEFAULT NOTICE") to
the Guarantor:
15.2.1 cancel the Facilities and require the Borrowers immediately to
repay all Advances together with accrued interest and all other
sums payable under this Agreement, whereupon they shall become
immediately due and payable; or
15.2.2 place the Facilities on demand, whereupon all Advances together
with accrued interest and all other sums payable under this
Agreement shall become repayable on demand made by the Agent on
the instructions of the Majority Lenders.
Upon the service of any Default Notice the Lenders' obligations under
this Agreement shall be terminated and the Commitment of each Lender
shall be cancelled.
15.3 DEMERGER
The Lenders confirm that any waiver or consent requested by the
Guarantor due to the fact that any steps or transactions required to be
taken by it or any company in the Group for the purpose of completing
the Demerger are not permitted by or would cause a breach of this
Agreement shall be considered by the Lenders in good faith. There will
be no obligation on the Lenders to give such waiver or consent.
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16 SET-OFF
Without prejudice to their rights at law, any time while a Default has
occurred and is continuing, the Agent and each Lender may set-off any
matured obligation owed by an Obligor under any Financing Document
against any matured obligation owed by the Agent or the relevant Lender
to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Agent or the relevant Lender may convert either
obligation at the spot rate of exchange of the Agent or the relevant
Lender, as the case may be, for the purpose of the set-off.
17 PRO RATA SHARING
17.1 REDISTRIBUTION
If any amount owing by an Obligor under this Agreement to a Lender (the
"SHARING LENDER") is discharged by voluntary or involuntary payment,
set-off or in any other manner other than through the Agent in
accordance with Clause 10 (PAYMENTS), then:
17.1.1 the Sharing Lender shall immediately notify the Agent of the
amount discharged and the manner of its receipt or recovery;
17.1.2 the Agent shall determine whether the amount discharged is in
excess of the amount which the Sharing Lender would have
received had the amount discharged been received by the Agent
and distributed in accordance with Clause 10 (PAYMENTS);
17.1.3 the Sharing Lender shall pay the Agent an amount equal to that
excess (the "EXCESS AMOUNT") within 5 Business Days of demand
by the Agent;
17.1.4 the Agent shall treat the excess amount as if it were a payment
by an Obligor under Clause 10 (PAYMENTS) and shall pay the
excess amount to the Lenders (other than the Sharing Lender) in
accordance with Clause 10.7 (PARTIAL PAYMENTS); and
17.1.5 as between the relevant Obligor and the Sharing Lender the
excess amount shall be treated as not having been received or
recovered, and accordingly that Obligor shall owe the Sharing
Lender an immediately payable debt equal to the excess amount.
17.2 LEGAL PROCEEDINGS
Notwithstanding Clause 17.1 (REDISTRIBUTION), no Sharing Lender shall be
obliged to share any excess amount which it receives or recovers
pursuant to legal proceedings taken by it to recover any sums owing to
it under this Agreement with any other Lender which has a legal right
to, but does not, either join in such proceedings or commence and
diligently pursue separate proceedings to enforce its rights, unless the
proceedings instituted by the Sharing Lender are instituted by it
without prior notice having been given to such Lender through the Agent
and an opportunity to such Lender to join in such proceedings.
17.3 REVERSAL OF REDISTRIBUTION
If any excess amount subsequently has to be wholly or partly refunded to
a Borrower by a Sharing Lender which has paid an amount equal to that
excess amount to the Agent under Clause 17.1 (REDISTRIBUTION), each
Lender to which any part of that amount was distributed
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shall on request from the Sharing Lender repay to the Sharing Lender
such Lender's proportionate share of the amount which has to be so
refunded by the Sharing Lender.
17.4 INFORMATION
Each Lender shall on request supply to the Agent such information as the
Agent may from time to time request for the purpose of this Clause 17.
18 THE ARRANGER, THE AGENT AND THE LENDERS
18.1 APPOINTMENT AND DUTIES
18.1.1 Each Lender irrevocably appoints the Agent to act as its agent
in connection with this Agreement and irrevocably authorises
the Agent on its behalf to perform the duties and to exercise
the rights, powers and discretions that are specifically
delegated to it under or in connection with this Agreement
together with any other incidental rights, powers and
discretions.
18.1.2 The Agent shall have no duties or responsibilities except those
expressly set out in this Agreement. As to any matters not
expressly provided for, the Agent shall act in accordance with
the instructions of the Majority Lenders (but in the absence of
any such instructions shall not be obliged to act). Any such
instructions, and any action taken by the Agent in accordance
with those instructions, shall be binding upon all the Lenders.
18.1.3 The Agent may:
(i) act in an agency, trustee, fiduciary or other capacity on
behalf of any other banks or financial institutions
providing facilities to any Group Company or any
associated company of a Group Company, as freely in all
respects as if it had not been appointed to act as agent
and/or trustee for the Lenders under this Agreement and
without regard to the effect on the Lenders of acting in
such capacity; and
(ii) subscribe for, hold, be beneficially entitled to or
dispose of shares or securities, or options or other
rights to and interests in shares or securities in any
Group Company or any associated company of a Group
Company (in each case, without liability to account).
18.1.4 Each division or department of the Agent (including, for so
long as Citibank International plc is the Agent, the European
Loans Agency department of Citibank International plc) shall be
treated as a separate entity from any other division or
department of the Agent. If any of the Agent's divisions or
departments (including, in the case of Citibank International
plc, its European Loans Agency department) should act for any
Group Company in any capacity (whether as bankers or otherwise)
in relation to any other matter, any information given by any
Group Company to any such division or department may be treated
as confidential and the Agent shall, as between itself and the
Lenders, not be obliged to disclose the same to any Lender or
any other person.
18.1.5 It is acknowledged that the role of the Arranger is and has
been confined solely to arranging the Facilities and that it
does not act as agent of any Lender and that in such capacity
it shall have no obligations and liabilities in relation to
this Agreement.
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18.2 PAYMENTS
18.2.1 The Agent shall promptly account to the Lending Office of each
Lender for such Lender's due proportion of all sums received by
the Agent for such Lender's account, whether by way of
repayment or prepayment of principal or payment of interest,
fees or otherwise.
18.2.2 The Agent shall maintain a memorandum account showing the
principal amount of each Advance outstanding under this
Agreement and the amount of each Lender's Participation in the
Advances.
18.2.3 Each Lender confirms in favour of the Agent that, unless it
notifies the Agent to the contrary, it will be the beneficial
owner of any interest paid to it under this Agreement, and it
will be within the charge to United Kingdom corporation tax as
respects that interest.
18.3 DEFAULT
The Agent shall not be obliged to monitor or enquire as to whether or
not a Default or Potential Default has occurred. The Agent shall be
entitled to assume that no Default or Potential Default has occurred
unless it receives notice to the contrary from a Borrower or any Lender
describing the Default or Potential Default and stating that such notice
is a "Default Notice" or unless it is aware of a payment default under
this Agreement, in which case it shall promptly notify each Lender.
18.4 RELIANCE
The Agent may:
18.4.1 rely on any communication or document believed by it to be
genuine and correct and to have been communicated or signed by
the person by whom it purports to be communicated or signed;
and
18.4.2 engage, pay for and rely on the advice of any professional
advisers selected by it given in connection with the Financing
Documents or any of the matters contemplated by the Financing
Documents,
and shall not be liable to any Party for any of the consequences of such
reliance.
18.5 LEGAL PROCEEDINGS
18.5.1 The Agent shall not be obliged to take or commence any legal
action or proceeding against a Borrower or any other person
arising out of or in connection with the Financing Documents
until it shall have been indemnified or secured to its
satisfaction against all costs, claims and expenses (including
any costs award which may be made against it as a result of any
such legal action or proceeding not being successful) which it
may expend or incur in such legal action or proceeding.
18.5.2 The Agent may refrain from doing anything which might in its
opinion constitute a breach of any law or any duty of secrecy
or confidentiality or be otherwise actionable at the suit of
any person.
18.6 NO LIABILITY
18.6.1 Neither the Agent nor any of its officers, employees or agents
shall be liable for any action taken or not taken by it or any
of them under or in connection with the
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Financing Documents unless directly caused by its or their
negligence, wilful misconduct or breach of this Agreement.
18.6.2 Neither the Agent nor the Arranger shall be responsible for any
statements, representations or warranties in this Agreement or
for any information supplied or provided to any Lender by the
Agent or the Arranger in respect of an Obligor or any other
person or for any other matter relating to this Agreement or
for the execution, genuineness, validity, legality,
enforceability or sufficiency of this Agreement or any other
document referred to in this Agreement or for the
recoverability of all or any of the Advances or any of the
other sums to become due and payable under the Financing
Documents.
18.7 CREDIT DECISIONS
18.7.1 Each Lender:
(i) acknowledges that it has, independently and without
reliance on the Agent or the Arranger, made its own
analysis of the transaction contemplated by, and reached
its own decision to enter into, this Agreement and made
its own investigation of the financial condition and
affairs and its own appraisal of the creditworthiness of
the Borrowers and any surety for the Borrowers'
obligations; and
(ii) agrees that it shall continue to make its own independent
appraisal of the creditworthiness of the Borrowers and
any surety for the Borrowers' obligations.
18.7.2 Each Lender agrees that it shall, independently and without
reliance on the Agent or the Arranger, make its own decision to
take or not take action under this Agreement.
18.8 INFORMATION
18.8.1 The Agent shall provide the Lenders with all information and
copies of all notices which by the terms of this Agreement are
to be provided or given to the Lenders.
18.8.2 Except as specifically provided in this Agreement, the Agent
shall not be under any duty or obligation:
(i) either initially or on a continuing basis, to provide any
Lender with any credit information or other information
with respect to the financial condition of the Obligors
or which is otherwise relevant to the Facilities; or
(ii) to request or obtain any certificate, document or
information from an Obligor unless specifically requested
to do so by a Lender in accordance with this Agreement.
18.9 RELATIONSHIP WITH LENDERS
18.9.1 In performing its functions and duties under this Agreement,
the Agent shall act solely as the agent for the Lenders and
except as expressly provided in this Agreement shall not be
deemed to be acting as trustee for any Lender and shall not
assume or be deemed to have assumed any obligation as agent or
trustee for, or any relationship of agency or trust with, any
Obligor.
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18.9.2 Neither the Agent, the Arranger nor any Lender shall be under
any liability or responsibility of any kind to an Obligor or
any other Lender arising out of or in relation to any failure
or delay in performance or breach by an Obligor or any other
Lender of any of its or their respective obligations under this
Agreement.
18.10 AGENT'S POSITION
18.10.1 With respect to its own Participation in an Advance, the Agent
shall have the same rights and powers under and in respect of
this Agreement as any other Lender and may exercise those
rights and powers as though it were not also acting as agent
for the Lenders. The Agent may, without liability to account,
accept deposits from, lend money to and generally engage in any
kind of banking, finance, advisory, trust or other business
with or for a Borrower as if it were not the agent or the
trustee for the Lenders under this Agreement.
18.10.2 The Agent may retain for its own use and benefit (and shall not
be liable to account to any Lender for all or any part of) any
sums received by it by way of agency or management or
arrangement fees or by way of reimbursement of expenses
incurred by it.
18.11 INDEMNITY
Each Lender shall immediately on demand indemnify the Agent ((to the
extent not reimbursed by the Obligors) rateably according to the
proportion which its Commitment bears to the Total Commitments) from and
against all liabilities, losses and expenses of any kind or nature
whatsoever in any way relating to or arising out of this Agreement
(except in respect of any agency, management or other fee due to the
Agent) which may be incurred by the Agent in its capacity as agent or
trustee for the Lenders or any action taken or omitted by the Agent in
enforcing or preserving the rights of the Lenders or the Agent under
this Agreement, provided that no Lender shall be liable for any portion
of such liabilities, losses or expenses resulting from the Agent's gross
negligence or wilful misconduct. The Obligors shall reimburse each
Lender on demand in full in respect of any amount paid to the Agent by
such Lender under this Clause 18.11.
18.12 REMOVAL AND RESIGNATION OF THE AGENT
18.12.1 The Majority Lenders may, by giving at least 60 days' notice to
the Agent, remove the Agent and replace it with a successor
Agent approved by the Guarantor (such approval not to be
unreasonably withheld).
18.12.2 The Agent may, following consultation with the Guarantor,
resign and appoint one of its Affiliates acting through an
office in London, as successor by giving notice to the Lenders
and the Guarantor.
18.12.3 Alternatively to the resignation under Clause 18.12.2, the
Agent may resign by giving at least 60 days' notice to the
Guarantor and each Lender. Upon receipt of a notice of
resignation the Guarantor and the Majority Lenders may select
any bank or other financial institution as successor Agent.
18.12.4 If no bank or other financial institution selected by the
Guarantor and the Majority Lenders shall have accepted such
appointment within 20 days after the Agent has given a notice
of resignation in accordance with Clause 18.12.3, then the
Majority Lenders may, after consultation with the Guarantor,
appoint any bank or other financial institution as successor
Agent.
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18.12.5 If no bank or other financial institution selected by the
Majority Lenders shall have accepted such appointment within 40
days after the Agent has given a notice of resignation in
accordance with Clause 18.12.3, then the resigning Agent may,
after consultation with the Guarantor, appoint any bank or
other financial institution with an office in London as
successor Agent.
18.12.6 The resignation or removal of the Agent and the appointment of
any successor Agent shall both become effective only upon the
successor Agent notifying the resigning Agent, the Guarantor
and each Lender that it accepts its appointment. On such
notification:
(i) the resigning Agent shall be discharged from its
obligations and duties as Agent under this Agreement but
it shall continue to be able to rely on the provisions of
this Clause 18 in respect of all matters relating to the
period of its appointment; and
(ii) the successor Agent shall assume the role of Agent and
shall have all the rights, powers, discretions and duties
which the Agent has under the Financing Documents.
18.12.7 The resigning Agent shall make available to the successor Agent
all records and documents held by it as Agent, and shall
co-operate with the successor Agent to ensure an orderly
transition.
18.13 CHANGE OF OFFICE
The Agent may at any time in its sole discretion by notice to the
Guarantor and each Lender designate a different office in the United
Kingdom from which its duties as the Agent will be performed.
19 FEES AND EXPENSES
19.1 EXPENSES
The Guarantor shall on demand pay all expenses incurred (including
reasonable legal, valuation and accounting fees but in relation to
paragraphs Clauses 19.1.1, 19.1.2 and 19.1.3 below only to the extent
the same are reasonable in amount and subject to the limits agreed in
the Fees Letter), and any VAT on those expenses:
19.1.1 by the Agent in connection with the negotiation, preparation
and execution of the Financing Documents and the other
documents contemplated by the Financing Documents;
19.1.2 by the Agent in respect of the syndication of the Facilities;
19.1.3 by the Agent or the Lenders in connection with the granting of
any release, waiver or consent or in connection with any
amendment or variation of any Financing Document; and
19.1.4 by the Agent or the Lenders in enforcing, perfecting,
protecting or preserving (or attempting so to do) any of their
rights, or in suing for or recovering any sum due from a
Borrower or any other person under any Financing Document.
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19.2 ARRANGEMENT, AGENCY AND PARTICIPATION FEES
The Guarantor shall pay to the Arranger arrangement and participation
fees and to the Agent agency fees in accordance with the terms of the
Fees Letter.
19.3 COMMITMENT FEE
19.3.1 The Guarantor shall pay a commitment fee in euros to the Agent
for the account of the Lenders on the Available Revolving
Credit Facility and Available 364 Day Facility. The commitment
fee shall be calculated at a rate equal to the Applicable Rate
(as defined in Clause 19.3.2) on a day to day basis and a 360
day year in respect of the Revolving Commitment Period or, as
the case may be, the 364 Day Commitment Period (including any
extension under Clause 8.6 (EXTENSIONS TO 364 DAY COMMITMENT
PERIOD)) and shall be payable in arrear at the end of each
successive period of 3 months commencing on the date of this
Agreement and also on the last day of the Revolving Credit
Commitment Period or, as the case may be, the 364 Day
Commitment Period, or on any earlier date on which the Total
Revolving Credit Commitments or, as the case may be, the Total
364 Day Commitments equals zero.
19.3.2 On any day the "APPLICABLE RATE" in relation to:
(i) the Revolving Credit Facility shall be the percentage
rate per annum set out in Column B below; and
(ii) the 364 Day Facility shall be the percentage rate per
annum set out in Column C below,
in each case, opposite the Debt Rating Level of the Guarantor
at the opening of business in London on such date set out in
Column A below:
COLUMN A COLUMN B COLUMN C
DEBT RATING LEVEL REVOLVING CREDIT FACILITY 364 DAY FACILITY
PERCENTAGE PER ANNUM PERCENTAGE PER ANNUM
Level 1 0.1625 0.09
Xxxxx 0 0.1875 0.10
Level 3 0.2625 0.14
provided that if on such date :
(a) the Debt Rating Level given by one of S&P or Xxxxx'x
is Xxxxx 0 and by the other of S&P or Xxxxx'x is
Xxxxx 0, Xxxxx 0 xxxxx xx the Debt Rating Level; or
(b) the Debt Rating Level given by one of S&P or Xxxxx'x
is Xxxxx 0 and by the other of S&P or Xxxxx'x is
Xxxxx 0, Xxxxx 0 xxxxx xx the Debt Rating Level; or
(c) the Debt Rating given by one of S&P or Xxxxx'x is
Xxxxx 0 and by the other of S&P or Xxxxx'x is Xxxxx
0, Xxxxx 0 xxxxx xx the Debt Rating Level.
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19.4 UTILISATION FEE
19.4.1 Subject to Clause 19.4.2 below, the Guarantor shall pay a
utilisation fee in euros to the Agent for the account of the
Lenders on the aggregate amount of the outstanding Advances.
The utilisation fee shall be calculated at a rate equal to
0.025 per cent. per annum of the aggregate amount of the
outstanding Advances on a day to day basis and a 360 day year
and shall be payable in arrear at the end of each successive
period of 3 months commencing on the date of this Agreement.
19.4.2 The utilisation fee will be payable whenever the aggregate
amount of the outstanding Advances exceeds 50 per cent. of the
Total Commitments.
19.5 DOCUMENTARY TAXES INDEMNITY
All stamp, documentary, registration or other like duties or Taxes,
including any penalties, additions, fines, surcharges or interest
relating to those duties and Taxes, which are imposed or chargeable on
or in connection with, or arising as a consequence of any Financing
Document (for the avoidance of doubt, other than any Transfer
Certificate) shall be paid by the Guarantor. The Agent shall be entitled
but not obliged to pay any such duties or Taxes (whether or not they are
its primary responsibility). If the Agent does so the Guarantor shall on
demand indemnify the Agent against those duties and Taxes and against
any costs and expenses incurred by the Agent in discharging them.
19.6 VAT
19.6.1 All payments made by an Obligor under the Financing Documents
are calculated without regard to VAT. If any such payment
constitutes the whole or any part of the consideration for a
taxable or deemed taxable supply (whether that supply is
taxable pursuant to the exercise of an option or otherwise) by
the Agent or a Lender, the amount of that payment shall be
increased by an amount equal to the amount of VAT which is
chargeable in respect of the taxable supply in question.
19.6.2 No payment or other consideration to be made or furnished to an
Obligor by the Agent or a Lender pursuant to or in connection
with this Agreement or any transaction or document contemplated
in this Agreement may be increased or added to by reference to
(or as a result of any increase in the rate of) any VAT which
shall be or may become chargeable in respect of any taxable
supply.
19.7 INDEMNITY PAYMENTS
Where in this Agreement an Obligor has an obligation to indemnify or
reimburse the Agent or a Lender in respect of any loss or payment, the
calculation of the amount payable by way of indemnity or reimbursement
shall take account of the likely Tax treatment in the hands of the Agent
or the relevant Lender, as the case may be (as determined by the
relevant party's auditors) of the amount payable by way of indemnity or
reimbursement and of the loss or payment in respect of which that amount
is payable.
20 AMENDMENTS AND WAIVERS
20.1 MAJORITY LENDERS
20.1.1 Subject to Clause 20.2 (ALL LENDERS), any term of this
Agreement may be amended or waived with the written agreement
of the Guarantor, the Majority Lenders and
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the Agent. The Agent may effect, on behalf of the Majority
Lenders, an amendment or waiver to which the Majority Lenders
have agreed.
20.1.2 The Agent shall promptly notify the Guarantor and each Lender
of any amendment or waiver effected under Clause 20.1.1 and any
such amendment or waiver shall be binding on the Obligors and
each Lender.
20.2 ALL LENDERS
An amendment or waiver which relates to:
20.2.1 the definition of "Majority Lenders" in Clause 1.1 (DEFINITIONS
AND INTERPRETATION);
20.2.2 an extension of the date for, or a decrease in an amount or a
change in the currency of, any payment under this Agreement;
20.2.3 an increase in a Lender's Commitment;
20.2.4 a term of this Agreement which expressly requires the consent
of each Lender;
20.2.5 Clause 7 (INTEREST), 8 (REPAYMENT, PREPAYMENT'S CANCELLATION
AND EXTENSION), 11 (GUARANTEE) or 17 (PRO RATA SHARING) or this
Clause 20 (AMENDMENTS AND WAIVERS); or
20.2.6 an extension of the Revolving Credit Commitment Period,
may not be effected without the prior written consent of each Lender.
20.3 CHANGE IN CURRENCY
20.3.1 Unless otherwise prohibited by law, if more than one currency
or currency unit are at the same time recognised by the central
bank of any country as the lawful currency of that country,
then:
(i) any reference in the Financing Documents to, and any
obligations arising under the Financing Documents in, the
currency of that country shall be translated into, or
paid in, the currency or currency unit of that country
designated by the Agent (after consultation with the
Guarantor); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of that
currency or currency unit into the other, rounded up or
down by the Agent (acting reasonably).
20.3.2 If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent (acting reasonably and after
consultation with the Guarantor) specifies to be necessary, be
amended to comply with any generally accepted conventions and
market practice in the relevant interbank market and otherwise
to reflect the change in currency.
20.4 NO IMPLIED WAIVERS; REMEDIES CUMULATIVE
The rights of the Agent and each Lender under the Financing Documents:
20.4.1 may be exercised as often as necessary;
20.4.2 are cumulative and not exclusive of its rights under the
general law; and
20.4.3 may be waived only in writing and specifically.
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Delay in exercising or non-exercise of any such right is not a waiver of
that right.
21 MISCELLANEOUS
21.1 SEVERANCE
If any provision of the Financing Documents is or becomes illegal,
invalid or unenforceable in any jurisdiction, that shall not affect:
21.1.1 the legality, validity or enforceability in that jurisdiction
of any other provision of this Agreement; or
21.1.2 the legality, validity or enforceability in any other
jurisdiction of that or any other provision of the Financing
Documents.
21.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts and this
shall have the same effect as if the signatures on the counterparts were
on a single copy of this Agreement.
22 NOTICES
22.1 METHOD
Each notice or other communication to be given under this Agreement
shall be given in writing in English and, unless otherwise provided,
shall be made by telex, fax or letter.
22.2 DELIVERY
Any notice or other communication to be given by one Party to another
under this Agreement shall (unless one Party has by 15 days' notice to
the other Party specified another address) be given to that other Party,
in the case of any of the Obligors and the Agent, at the respective
addresses given in Clause 22.3 and in the case of the Lenders, at the
respective addresses notified to the Agent in writing prior to the date
on which it becomes a Party and, in the case of any new Borrower as set
out in the schedule to its relevant Deed of Accession.
22.3 ADDRESSES
The address, telex number and fax number of the Obligors and Agent are:
22.3.1 the Obligors:
c/o Aon Finance Limited
0 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxx Xxxx Aon Law Division
Fax: 000 0000 0000
Copy to:
Aon Corporation
000 X. Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx
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Illinois 00000
X.X.X.
Attention: Xxxxx Xxxxxxx/Xxx Xxxxxx
Fax: 000 000 000 0000
and
AON Corporation
000 X. Xxxxxxxx Xxxxxx
Xxxxxxx
Xxxxxxxx 00000
U.S.A
Attention: Xxxxxxx X Xxxxx, Senior Counsel
Fax: 000 000 000 0000
22.3.2 the Agent:
Loans Agency
Riverdale House
Floor 3
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX00 0XX
Attention: Loans Agency
Telex: 299831
Fax: 000 0000 0000
22.4 DEEMED RECEIPT
22.4.1 Any notice or other communication given by the Agent shall be
deemed to have been received:
(i) if sent by telex with the relevant answerback appearing
at the beginning and end of the telex, on the day on
which transmitted;
(ii) if sent by fax, with a confirmed receipt of transmission
from the receiving machine, on the day on which
transmitted;
(iii) in the case of a written notice given by hand, on the day
of actual delivery; and
(iv) if posted, on the second Business Day or, in the case of
airmail, the fifth Business Day following the day on
which it was despatched by first class mail postage
prepaid or, as the case may be, airmail postage prepaid,
provided that a notice given in accordance with the above but
received on a day which is not a Business Day or after normal
business hours in the place of receipt shall only be deemed to
have been received on the next Business Day.
22.4.2 Any notice or other communication given to the Agent shall be
deemed to have been given only on actual receipt.
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22.5 NOTICES THROUGH AGENT
Any notice or other communication from or to an Obligor under this
Agreement shall be sent through the Agent.
22.6 NOTICES THROUGH AON UK
Any notices or other communication under this Agreement from or to an
Obligor shall be sent through Aon UK which shall act as agent on behalf
of each of the Obligors in such respect.
22.7 ELECTRONIC COMMUNICATION
22.7.1 Any communication to be made between the Agent and a Lender
under or in connection with the Financing Documents may be made
by electronic mail or other electronic means, if the Agent and
the relevant Lender:
(i) agree that, unless and until notified to the contrary,
this is to be an accepted form of communication;
(ii) notify each other in writing of their electronic mail
address and/or any other information required to enable
the sending and receipt of information by that means; and
(iii) notify each other of any change to their address or any
other such information supplied by them.
22.7.2 Any electronic communication made between the Agent and a
Lender will be effective only when actually received in
readable form and in the case of any electronic communication
made by a Lender to the Agent only if it is addressed in such a
manner as the Agent shall specify for this purpose.
23 ASSIGNMENTS AND TRANSFERS
23.1 BENEFIT OF AGREEMENT
This Agreement shall be binding upon and ensure to the benefit of each
Party and its successors and assigns.
23.2 ASSIGNMENTS AND TRANSFERS BY BORROWER
No Obligor shall be entitled to assign or transfer any of its rights or
obligations under the Financing Documents.
23.3 ASSIGNMENTS BY LENDERS
Subject to Clause 23.5 (ASSIGNMENT AND TRANSFER REQUIREMENTS), any
Lender may assign any of its rights and benefits under this Agreement to
another bank or other financial institution, and provided that until the
assignee has confirmed to the Agent and the other Lenders that it shall
be under the same obligations towards each of them as it would have been
under if it had been a party to this Agreement as a Lender, the Agent
and the other Lenders shall not be obliged to recognise the assignee as
having the rights against each of them which it would have had if it had
been such a party to this Agreement.
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23.4 TRANSFERS BY LENDERS
23.4.1 Subject to Clause 23.5 (ASSIGNMENT AND TRANSFER REQUIREMENTS),
any Lender may transfer, in accordance with this Clause 23.4,
any of its rights and obligations under this Agreement.
23.4.2 If any Lender (the "EXISTING LENDER") wishes to transfer all or
any part of its Commitment or Participation in Advances to
another bank or other financial institution (the "LENDER
TRANSFEREE"), such transfer may be effected by way of a
novation by the delivery to, and the execution by, the Agent of
a duly completed Transfer Certificate.
23.4.3 On the date specified in the Transfer Certificate:
(i) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer its Commitment or
Participation in Advances, the Obligors and the Existing
Lender shall each be released from further obligations to
each other under this Agreement and their respective
rights against each other shall be cancelled (such rights
and obligations being referred to in this Clause 23.4.3
as "DISCHARGED RIGHTS AND OBLIGATIONS");
(ii) the Obligors and the Lender Transferee shall each assume
obligations towards each other and/or acquire rights
against each other which differ from the Discharged
Rights and Obligations only insofar as the Obligors and
the Lender Transferee have assumed and/or acquired the
same in place of the Obligors and the Existing Lender;
and
(iii) each of the Parties and the Lender Transferee shall
acquire the same rights and assume the same obligations
among themselves as they would have acquired and assumed
had the Lender Transferee been a party under this
Agreement as a Lender with the rights and/or the
obligations acquired or assumed by it as a result of the
transfer.
23.4.4 The Agent shall promptly complete a Transfer Certificate on
request by an Existing Lender and upon payment by the Lender
Transferee of a fee of $1,500 to the Agent. Each Obligor and
each Lender irrevocably authorises the Agent to execute any
duly completed Transfer Certificate on its behalf provided that
such authorisation does not extend to the execution of a
Transfer Certificate on behalf of either the Existing Lender or
the Lender Transferee named in the Transfer Certificate.
23.4.5 The Agent shall promptly notify the Guarantor of the receipt
and execution on its behalf by the Agent of any Transfer
Certificate.
23.5 ASSIGNMENT AND TRANSFER REQUIREMENTS
In relation to any assignment or transfer under this Clause 23:
23.5.1 such assignment or transfer must be in respect of a Commitment
of at least EURO 10,000,000 or, if less, the whole Commitment
of the assignee or transferee; and
23.5.2 such assignment or transfer may be of the assignor's or
transferor's Revolving Credit Commitment and/or 364 Day
Commitment, in any proportion; and
23.5.3 unless such assignment or transfer is to an Affiliate of the
assignor or transferor incorporated in the same jurisdiction as
the assignor and transferor or to another
- 58 -
Lender, the prior consent of the Guarantor shall have been
obtained (such consent not to be unreasonably withheld or
delayed).
23.5.4 if any Lender assigns its rights under this Agreement a written
instrument by which such rights are assigned must be notified
to any Borrower incorporated in France by bailiff ("HUISSIER")
in accordance with the provision of article 1690 of the French
Civil Code at the cost of the Lender concerned.
23.6 CONSEQUENCES OF TRANSFER
The Obligors shall be under no obligation to pay any greater amount
under this Agreement (including, any amounts which would otherwise be
payable by such Borrower under Clause 10.9 (GROSSING-UP) or Clause 9.2
(INCREASED COSTS)) following an assignment or transfer by a Lender of
any of its rights or obligations pursuant to this Clause 23 if, in the
circumstances existing at the time of such assignment or transfer, such
greater amount would not have been payable but for the assignment or
transfer.
23.7 SUB-PARTICIPATION
Each Lender may at any time sub-participate any of its rights and/or
obligations under this Agreement.
23.8 DISCLOSURE OF INFORMATION
In addition to their rights of disclosure at law, the Agent and each
Lender may disclose to each other, to their Affiliates, to their
professional advisers, their auditors, any relevant regulator or to any
actual or potential assignee, transferee or sub-participant any
information which the Agent or that Lender has acquired under or in
connection with any Financing Document subject (other than in the case
of disclosure required by law or to a regulator) to the recipient
agreeing to treat the relevant information as confidential.
24 INDEMNITIES
24.1 BREAKAGE COSTS INDEMNITY
The Guarantor shall indemnify each Lender on demand against any loss or
expense (including any loss or expense on account of funds borrowed,
contracted for or utilised to fund any amount payable under this
Agreement, any amount repaid or prepaid under this Agreement or any
Advance) which that Lender has sustained or incurred as a consequence
of:
24.1.1 an Advance not being made following the service of a Drawdown
Notice (except as a result of the failure of that Lender to
comply with its obligations under this Agreement);
24.1.2 the operation of Clause 6.2 (NO ALTERNATIVE CURRENCY);
24.1.3 the failure of an Obligor to make payment on the due date of
any sum due under this Agreement;
24.1.4 the occurrence of any Default or the operation of Clause 15.2
(ACCELERATION); or
24.1.5 any repayment or prepayment of an Advance (other than pursuant
to Clause 9.1.2 otherwise than on the last day of the Interest
Period in relation to that Advance.
- 59 -
24.2 CURRENCY INDEMNITY
24.2.1 Any payment made to or for the account of or received by the
Agent or any Lender in respect of any moneys or liabilities
due, arising or incurred by an Obligor to the Agent or any
Lender in a currency (the "CURRENCY OF PAYMENT") other than the
currency in which the payment should have been made under this
Agreement (the "CURRENCY OF OBLIGATION") in whatever
circumstances (including as a result of a judgment against that
Obligor) and for whatever reason shall constitute a discharge
to that Obligor only to the extent of the Currency of
Obligation amount which the Agent or that Lender, as the case
may be, is able on the date of receipt of such payment (or if
such date of receipt is not a Business Day, on the next
succeeding Business Day) to purchase with the Currency of
Payment amount at its spot rate of exchange (as conclusively
determined by the Agent or that Lender) in the London foreign
exchange market.
24.2.2 If the amount of the Currency of Obligation which the Agent or
that Lender is so able to purchase falls short of the amount
originally due to the Agent or that Lender, as the case may be,
under this Agreement, then the relevant Obligor shall
immediately on demand indemnify the Agent or that Lender, as
the case may be, against any loss or damage arising as a result
of that shortfall by paying to the Agent or that Lender, as the
case may be, that amount in the Currency of Obligation
certified by the Agent or that Lender, as the case may be, as
necessary so to indemnify it.
24.3 GENERAL
24.3.1 The indemnities in this Clause 24 shall constitute separate and
independent obligations from the other obligations contained in
this Agreement, shall give rise to separate and independent
causes of action, shall apply irrespective of any indulgence
granted from time to time and shall continue in full force and
effect notwithstanding any judgment or order for a liquidated
sum or sums in respect of amounts due under this Agreement or
under any such judgment or order.
24.3.2 The certificate of the Agent or the relevant Lender as to the
amount of any loss or damage sustained or incurred by it shall
be conclusive and binding on the Obligors except for any
manifest error.
25 LAW AND JURISDICTION
25.1 LAW
This Agreement is governed by and shall be construed in accordance with
English law.
25.2 JURISDICTION
25.2.1 The Parties agree that the courts of England shall have
jurisdiction to settle any disputes which may arise in
connection with any Financing Document and that any judgment or
order of an English court in connection with any Financing
Document is conclusive and binding on them and may be enforced
against them in the courts of any other jurisdiction. This
Clause 25.2.1 is for the benefit of the Agent, the Arranger and
each Lender only and shall not limit the right of the Agent and
each Lender to bring proceedings against an Obligor in
connection with any Financing
- 60 -
Document in any other court of competent jurisdiction or
concurrently in more than one jurisdiction.
25.2.2 Each Obligor:
(i) waives any objections which it may have to the English
courts on the grounds of venue or forum non conveniens or
any similar grounds as regards proceedings in connection
with any Financing Document; and
(ii) consents to service of process by mail or in any other
manner permitted by the relevant law.
25.3 AGENT FOR SERVICE
Each Borrower which is not a "company" or an "overseas company" within
the meaning of the Act (an "OVERSEAS BORROWER") shall at all times
maintain an agent for service of process in England. That agent shall be
AON UK of 0 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Attention: Aon Law
Division. Any writ, summons, judgment or other notice of legal process
shall be sufficiently served on each Overseas Borrower if delivered to
that agent at its address for the time being and marked for the
attention of Aon Law Division. No Overseas Borrower shall revoke the
authority of that agent. If for any reason any such agent no longer
serves as agent of each Overseas Borrower to receive service of process,
each Overseas Borrower shall promptly appoint another such agent and
immediately advise the Agent of that appointment. AON UK hereby accepts
its appointment as agent of each Overseas Borrower to receive service of
process.
IN WITNESS whereof the Parties have caused this Agreement to be duly executed on
the date set out above.
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SCHEDULE 1
THE LENDERS
LENDER REVOLVING CREDIT 364 DAY COMMITMENT
COMMITMENT (EURO) (EURO)
Citibank NA 21,750,000 21,750,000
The Royal Bank of Scotland plc 21,750,000 21,750,000
Banco Santander Central Hispano S.A. 18,500,000 18,500,000
Bank of New York 18,500,000 18,500,000
Barclays Bank plc 18,500,000 18,500,000
Commerzbank Aktiengesellschaft, London Branch 18,500,000 18,500,000
ING Bank 18,500,000 18,500,000
Lloyds TSB Bank plc 18,500,000 18,500,000
The Hongkong and Shanghai Banking Corporation Limited 18,500,000 18,500,000
Banca di Roma S.P.A. 12,000,000 12,000,000
Bank Brussels Xxxxxxx 12,000,000 12,000,000
Bank ONE, NA 12,000,000 12,000,000
Natexis Banques Populaires 12,000,000 12,000,000
RBC Finance B.V. 12,000,000 12,000,000
Standard Chartered Bank 12,000,000 12,000,000
KBC Bank Nederland N.V. 5,000,000 5,000,000
- 62 -
SCHEDULE 2
CONDITIONS PRECEDENT
1 A Certified Copy of the certificate of incorporation (and any relevant
certificate of incorporation on change of name) and the memorandum and
articles of association or equivalent constitutional documents of each
Obligor.
2 A Certified Copy of the board minutes and resolutions or equivalent
corporate authority documentation in the relevant jurisdiction of each
Obligor approving and authorising the execution, delivery and
performance of the Financing Documents, on the terms and conditions of
the Financing Documents and authorising a person or persons to sign or
otherwise attest the due execution of the Financing Documents and any
other documents to be executed or delivered by the relevant Obligor
pursuant to the Financing Documents together with a certificate of a
duly authorised officer of the Obligors setting out the names and
signatures of the persons authorised to sign the Financing Documents on
behalf of the relevant Obligor.
3 Certified Copies of all consents, licences, approvals or authorisations
of any governmental or other authority, bureau or agency required by the
Obligors in connection with the execution, delivery, performance,
validity or enforceability of the Financing Documents or any document to
be delivered under the Financing Documents.
4 The Fee Letter duly executed by the Guarantor together with all fees and
expenses which have then become due and payable.
5 A legal opinion from each of:
(a) Linklaters in respect of English law;
(b) Freshfields Bruckhaus Xxxxxxxx LLP (New York) in respect of the
laws of the state of Delaware and the federal laws of the
United States of America and Xxxxxxx X. Xxxxx, in house counsel
of
Aon Corporation in respect of the laws of the State of
Illinois;
(c) D Porquet, in house counsel of AON France in respect of due
execution;
(d) S Hamann, in house counsel of AON Deutschland in respect of due
execution;
(e) T J M Xxxxxx-Xxxxxx, in house counsel of AON Holdings and AON
Groep in respect of due execution ;
(f) Linklaters, Paris in respect of French law (other than due
execution);
(g) Linklaters, Frankfurt in respect of German law (other than due
execution); and
(h) Linklaters, Amsterdam in respect of Dutch law (other than due
execution).
6 A certificate, dated the date of this Agreement, signed by a duly
authorised officer of the Guarantor certifying:
(a) that since 31 December 2000, no event has occurred which has
had, or could be reasonably expected to have a Material Adverse
Effect;
(b) no action, litigation, arbitration, administrative proceeding
or governmental enquiries has been commenced or is pending or
to the knowledge of their officers, threatened, against any
Group Company or its assets which, if decided adversely
- 63 -
could reasonably be expected to have a Material Adverse Effect
nor is there subsisting any unsatisfied judgment or award in an
amount exceeding $25,000,000 given against any of them by any
court, arbitrator or other body; and
(c) the Debt Rating Level as at that date.
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SCHEDULE 3
DRAWDOWN NOTICE
To: The Agent
From: [BORROWER]
*[date]
Dear Sirs,
EURO 500,000,000
CREDIT AGREEMENT DATED [ ] SEPTEMBER 2001 (THE "
CREDIT
AGREEMENT")
Terms defined in the
Credit Agreement have the same meaning in this notice.
We request an Advance to be drawn down under the
Credit Agreement as follows:
1 Facility [if 364 Day Facility also specify if Term Advance]:
2 Amount and currency of Advance:
3 Drawdown Date:
4 Duration of Interest Period/Initial Interest Period in case of Term
Advance:
5 Payment instructions:
(if applicable)
We confirm that today and on the Drawdown Date:
(a) the representations and warranties in Clause 12 (REPRESENTATIONS AND
WARRANTIES) to be repeated are and will be correct; and
(b) no Default or Potential Default has occurred and is continuing or will
occur on the making of the Advance.
SIGNED
For and on behalf of
[BORROWER]
(a company incorporated in [ ] under number [ ])
- 65 -
SCHEDULE 4
MANDATORY COST RATE
The Mandatory Cost Rate is an addition to the interest rate on an Advance to
compensate the Lenders for the cost attributable to an Advance resulting from
the imposition from time to time under or pursuant to the Bank of England Act
1998 (the "BANK ACT") and/or by the Bank of England and/or the Financial
Services Authority (the "FSA") (or other United Kingdom governmental authorities
or agencies) or European Central Bank of a requirement to place
non-interest-bearing or Special Deposits (whether interest bearing or not) with
the Bank of England and/or pay fees to the FSA calculated by reference to
liabilities used to fund the Advance.
The Mandatory Cost Rate for any Lender lending from a Lending Office in a
Participating Member State will be the percentage notified by that Lender to the
Agent as the cost of complying with the minimum reserve requirements of the
European Central Bank.
The Mandatory Cost Rate shall be the rate determined by the Agent to be equal to
the arithmetic mean (rounded upward, if necessary, to four decimal places) of
the respective rates notified by each Reference Bank to the Agent as the rate
resulting from the application (as appropriate) of the following formulae:
in relation to an Advance denominated
in Sterling: XL + S(L - D) + F x 0.01
------------------------
100 - (X + S)
in relation to an Advance denominated in
a currency other than Sterling: F x 0.01
--------
300
where on the day of application of a formula:
X is the percentage of Eligible Liabilities (in excess of any stated minimum)
by reference to which that Reference Bank is required under or pursuant to
the Bank Act to maintain an interest free cash ratio deposits with the Bank
of England;
L is the percentage rate per annum at which Sterling deposits for the
relevant period are offered by that Reference Bank to leading banks in the
London interbank market at or about 11.00am on that day;
F is the rate of charge payable by that Reference Bank to the FSA pursuant to
paragraph 2.02 or 2.03, as the case may be, of the Fees Regulations (but
where, for this purpose, the figure at paragraph 2.02b or 2.03b, as the
case may be, of the Fees Regulations shall be deemed to be zero) and
expressed in pounds per L1 million of the Fee Base of that Reference Bank;
S is the level of interest bearing Special Deposits, expressed as a
percentage of Eligible Liabilities, which that Reference Bank is required
to maintain by the Bank of England (or other United Kingdom governmental
authorities or agencies); and
D is the percentage rate per annum payable by the Bank of England to that
Reference Bank on Special Deposits.
- 66 -
(X, L, S and D shall be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L shall be
counted as zero.)
If any Reference Bank fails to notify any such rate to the Agent, the Mandatory
Cost Rate shall be determined on the basis of the rate(s) notified to the Agent
by the remaining Reference Bank(s).
The Mandatory Cost Rate attributable to an Advance or other sum for any period
shall be calculated at or about 11.00 a.m. on the first day of that period for
the duration of that period.
The determination of the Mandatory Cost Rate in relation to any period shall, in
the absence of manifest error, be conclusive and binding on the Parties.
If there is any change in circumstance (including the imposition of alternative
or additional requirements) which in the reasonable opinion of the Agent renders
or will render either of the above formulae (or any element of the formulae, or
any defined term used in the formulae) inappropriate or inapplicable, the Agent
(following consultation with the Borrower and the Majority Lenders) shall be
entitled to vary the same by giving notice to the Parties. Any such variation
shall, in the absence of manifest error, be conclusive and binding on the
Parties and shall apply from the date specified in such notice.
For the purposes of this Schedule:
"ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given to
those terms under or pursuant to the Bank Act or by the Bank of England (as
may be appropriate), on the day of the application of the formula.
"FEE BASE" has the meaning given to that term for the purposes of, and
shall be calculated in accordance with, the Fees Regulations.
"FEES REGULATIONS" means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 2001; or
(b) such regulations as from time to time may be in force, relating to
the payment of fees for banking supervision in respect of periods
subsequent to 31 March 2002.
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SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: The Agent
and the other parties to the
Credit Agreement (as defined below)
This transfer certificate (the "TRANSFER CERTIFICATE") relates to a
credit
agreement dated [ ] September 2001 and made between (1)
Aon Corporation as
guarantor, (2) certain subsidiaries of
Aon Corporation, (3) certain banks, (4)
Citibank International plc as agent and (5) Salomon Brothers International
Limited as arranger (the "
CREDIT AGREEMENT", which term shall include any
amendments or supplements to it).
Terms defined and references construed in the Credit Agreement shall have the
same meanings and construction in this Transfer Certificate.
1 [insert full name of Existing Lender] (the "EXISTING LENDER"):
(a) confirms that to the extent that details appear in the schedule to
this Transfer Certificate under the headings "Existing Lender's
Commitment" and "Existing Lender's Participation in Advances", those
details accurately summarise its Commitment and its Participation in
Advances all or part of which is to be transferred; and
(b) requests [insert full name of Lender Transferee] (the "LENDER
TRANSFEREE") to accept and procure, in accordance with Clause 23
(ASSIGNMENTS AND TRANSFERS) of the Credit Agreement, the substitution
of the Existing Lender by the Lender Transferee in respect of the
amount specified in the schedule to this Transfer Certificate of its
Commitment and its Participation in Advances by signing this Transfer
Certificate.
2 The Lender Transferee requests each of the Parties to accept this executed
Transfer Certificate as being delivered under and for the purposes of
Clause 23 (ASSIGNMENTS AND TRANSFERS) of the Credit Agreement so as to take
effect in accordance with the provisions of that Clause on [insert date of
transfer].
3 The Lender Transferee:
(a) [represents and warrants that as at the date of this Transfer
Certificate through the Lending Office it shall use for Advances to a
UK Borrower, it is a Qualifying Lender;]
(b) confirms that it has received a copy of the Credit Agreement together
with such other documents and information as it has requested in
connection with this transaction;
(c) confirms that it has not relied and will not rely on the Existing
Lender to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such
documents or information;
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(d) agrees that it has not relied and will not rely on the Arranger, the
Agent, the Existing Lender or any other Lender to assess or keep under
review on its behalf the financial condition, creditworthiness,
condition, affairs, status or nature of the Obligors; and
(e) confirms that its Lending Office is in [the United Kingdom].
4 The Lender Transferee undertakes with the Existing Lender and each of the
other parties to the Credit Agreement that it will perform, in accordance
with its terms, all those obligations which, by the terms of the Credit
Agreement, will be assumed by it upon delivery of the executed copy of this
Transfer Certificate to the Agent.
5 On execution of this Transfer Certificate by the Agent on their behalf, the
Parties accept the Lender Transferee as a party to the Credit Agreement in
substitution for the Existing Lender with respect to all those rights
and/or obligations which, by the terms of the Credit Agreement, will be
assumed by the Lender Transferee after delivery of the executed copy of
this Transfer Certificate to the Agent.
6 None of the Existing Lender, the other Lenders and the Agent:
(a) makes any representation or warranty or assumes any responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Credit Agreement; or
(b) assumes any responsibility for the financial condition of the Obligors
or any other party to the Credit Agreement or any other document or
for the performance and observance by the Obligors or any other party
to the Credit Agreement or any other document of its or their
obligations and any and all conditions and warranties, whether express
or implied by law or otherwise, are excluded.
7 The Lender Transferee confirms that its Lending Office and address for
notices for the purposes of the Credit Agreement are as set out in the
schedule to this Transfer Certificate.
8 The Existing Lender gives notice to the Lender Transferee (and the Lender
Transferee acknowledges and agrees with the Existing Lender) that the
Existing Lender is under no obligation to re-purchase (or in any other
manner to assume, undertake or discharge any obligation or liability in
relation to) the transferred Commitment and Participation at any time after
this Transfer Certificate shall have taken effect.
9 Following the date upon which this Transfer Certificate shall have taken
effect, without limiting the terms of this Transfer Certificate, each of
the Lender Transferee and the Existing Lender acknowledges and confirms to
the other that, in relation to the relative Commitment and Participation
(or part thereof), variations, amendments or alterations to any of the
terms of the Credit Agreement arising in connection with any renegotiation
or rescheduling of the obligations under the Credit Agreement shall apply
to and be binding on the Lender Transferee alone.
10 This Transfer Certificate is governed by and shall be construed in
accordance with English law.
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THE SCHEDULE
Existing Lender's Commitment Amount of Commitment Transferred
Existing Lender's Participation in Advances Amount of Participation Transferred
[INSERT FULL NAME OF LENDER TRANSFEREE]
Lending Office Address for notices
[ADDRESS]
Attention:
Telex:
Answerback:
Fax:
[LENDER TRANSFEREE]
By:
---------------------------------
Duly authorised)
[EXISTING LENDER]
By:
---------------------------------
Duly authorised
The Agent on behalf of itself and all other parties to the Credit Agreement
By:
---------------------------------
Duly authorised
Dated:
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SCHEDULE 6
FORM OF DEED OF ACCESSION
THIS DEED is made this [ ] day of [ ] 200[ ] by [ ] (the "NEW
PARTY") in favour of the other parties to the Credit Agreement (as defined
below).
RECITALS:
(A) This Deed is supplemental to a credit agreement (the "CREDIT AGREEMENT")
dated [ ] September 2001 made between (1)
Aon Corporation as guarantor,
(2) certain subsidiaries of
Aon Corporation, (3) certain banks, (4)
Citibank International plc as agent and (5) Salomon Brothers International
Limited as arranger.
(B) The New Party wishes to accede to the Credit Agreement as a Borrower.
(C) It is a term of the Credit Agreement that, in order to accede as a
Borrower, the New Party must enter into this Deed.
NOW THIS DEED WITNESSES AS FOLLOWS:
1 Terms defined and references construed in the Credit Agreement shall have
the same meanings and construction in this Deed.
2 The New Party:
(a) agrees to be bound by all the terms and conditions of the Credit
Agreement insofar as they relate to a Borrower as if the New Party was
a party to the Credit Agreement in such capacity; and
(b) represents and warrants to the Agent, the Arranger and the Lenders in
the terms of Clause 12.1.1 (STATUS) to 12.1.7 (LITIGATION) but such
representations and warranties shall be given so as to apply, MUTATIS
MUTANDIS, to the New Party only.
3 The New Party confirms that it has delivered to the Agent the documents
specified in the Schedule to this Deed.
4 The New Party agrees that it shall accede to the Credit Agreement
immediately upon the Agent countersigning this Deed.
IN WITNESS whereof the New Party has caused this Deed to be executed on the day
set out above.
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THE COMMON SEAL of
[ ]
was hereunto affixed in
the presence of:
Director
Director/Secretary
We agree, on behalf of all the parties to the Credit Agreement, that the New
Party shall, from the date of our signature, accede to the Credit Agreement as
if it were a Borrower named therein and a party to the Credit Agreement.
SIGNED
----------------------
for and on behalf of
[ ]
as Agent
Date: [ ]
SCHEDULE
1 A Certified Copy of our memorandum and articles of association or
equivalent constitutional documents.
2 Certified Copy of the resolution of our Board of Directors approving the
transactions contemplated by this Deed and authorising the execution of
this Deed and any other documents contemplated by the Credit Agreement.
3 Certified Copies of all other resolutions, authorisations, approvals,
consents and licences, corporate, official or otherwise, necessary or
desirable, to enable us to give effect to the transactions contemplated by
this Deed and for the validity and enforceability of this Deed.
4 A legal opinion from Messrs. [LEGAL COUNSEL IN JURISDICTION OF
INCORPORATION OF NEW PARTY]
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SCHEDULE 7
FORM OF TEG LETTER
To: Aon France S.A.
From: Citibank International plc as Agent
Dated: [ ]2001
Dear Sirs
[NAME OF THE BORROWER INCORPORATED IN FRANCE] - MULTICURRENCY REVOLVING LOAN
FACILITY OF EURO 250,000,000 AND 364 DAYS FACILITY OF EURO 250,000,000 DATED [-]
SEPTEMBER 2001 (THE "CREDIT AGREEMENT")
We refer to the Credit Agreement.
Terms defined in the Credit Agreement shall bear the same meaning in this letter
unless otherwise defined in this letter. References to Clauses in this letter
are references to Clauses in the Credit Agreement.
We confirm that:
1 this is the letter referred to in Clause 7.7(TAUX EFFECTIF GLOBAL) of the
Credit Agreement;
2 you acknowledge that, due to the fact that interest payable under the
Credit Agreement is to be calculated on a floating rate basis by references
to LIBOR or EURIBOR for Interest Periods selected by a Borrower, it is not
possible to compute the effective global rate ("TAUX EFFECTIF GLOBAL") for
the lifetime of the Facilities; and
3 in order to comply with the provisions of Articles L313-1 and L313-2 of the
French "CODE DE LA CONSOMMATION", and only as an indication based on the
assumptions described below, an example of calculation of the effective
global rate can be given as follows:
(i) for an Interest Period of three months and at EURO EURIBOR rate of
[ ]% per annum, a rate for the Facilities (TAUX DE PERIODE) of [ ]%;
(ii) for an Interest Period of six months and at L LIBOR rate of [ ]% per
annum, a rate for the Facilities (TAUX DE PERIODE) of [ ]%
The above rates are given on an indicative basis and on the basis (a) that
drawdown for the full amount of the Facilities will be made on - , (b) that
the EURIBOR/LIBOR rate, expressed as an annual rate, is as fixed on [DATE],
(c) that repayments occur at contractual maturity and not earlier, (d) that
no extension option pursuant to clause 8.6 has been exercised, (e) that the
Debt Rating Level (as defined in Clause 7.2 (MARGIN)) of the Guarantor is
Level 3, and (f) of the various fees payable by you under the terms of the
Credit Agreement. Such rates shall not be binding on the Arranger, the
Agent or a Lender.
We should be grateful if you would confirm your acceptance of the terms of this
letter by signing and returning to us the enclosed copy.
- 73 -
This letter is designated a Financing Document.
Yours faithfully.
--------------------------------------
Citibank International plc as Agent
We agree to the above.
--------------------------------------
[AON France S.A.]
- 74 -
THE GUARANTOR
SIGNED by XXXXX XXXXXXX
for and on behalf of
AON CORPORATION
THE BORROWERS
SIGNED by XXXX XXXXXXXX XXXX
for and on behalf of
AON FINANCE LIMITED
SIGNED by XXXXXXX XXXXXX
for and on behalf of
AON FRANCE S.A.
SIGNED by X.X. XXX
for and on behalf of
AON GROEP NEDERLAND B.V.
SIGNED by X.X. XXXXXXXXXX
for and on behalf of
AON HOLDINGS B.V.
SIGNED by HOLGER GASEROW XXXX XXXXXXXX
for and on behalf of
AON XXXXX & XXXXXXX HOLDINGS GmbH
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THE AGENT
SIGNED by XXXXX XXXX
for and on behalf of
CITIBANK INTERNATIONAL plc
THE ARRANGER
SIGNED by XXXXX XXXX
for and on behalf of
SALOMON BROTHERS INTERNATIONAL LIMITED
THE LENDERS
SIGNED by XXXXX XXXX
for and on behalf of
CITIBANK NA
SIGNED by XXXXXX XXXXXXXX
for and on behalf of
THE ROYAL BANK OF SCOTLAND PLC
SIGNED by XXXXXXX XXXXXXXX
XXXXXX XXXXXX
for and on behalf of
BANCO SANTANDER CENTRAL HISPANO S.A.
SIGNED by XXXXX XXXX
for and on behalf of
BANK OF NEW YORK
- 76 -
SIGNED by XXXX XXXXXXX
for and on behalf of
BARCLAYS BANK PLC
SIGNED by XXXXX XXXX
for and on behalf of
COMMERZBANK AKTIENGESELLSCHAFT,
LONDON BRANCH
SIGNED by XXXXX XXXX
for and on behalf of
ING BANK
SIGNED by XXXXX XXXXXX XXXXX
for and on behalf of
LLOYDS TSB BANK PLC
SIGNED by XXXXX XXXX
for and on behalf of
THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED
SIGNED by XXXXXXX XXXXXX
XXXX X. XXXXX
for and on behalf of
BANCA DI ROMA S.P.A.
- 77 -
SIGNED by XXXXX XXXX
for and on behalf of
BANK BRUSSELS XXXXXXX
SIGNED by XXXXX XXXX
for and on behalf of
BANK ONE, NA
SIGNED by XXXXX XXXX
for and on behalf of
NATEXIS BANQUES POPULAIRES
SIGNED by XXXXX XXXX
for and on behalf of
RBC FINANCE B.V.
SIGNED by XXXXXXXX XXXXXXXX
XXXXX XXXX
for and on behalf of
STANDARD CHARTERED BANK
SIGNED by XXXXX XXXX
for and on behalf of
KBC BANK NEDERLAND N.V.
- 78 -
