Exhibit
10.1


 


EXECUTION VERSION


 


€650,000,000


 


FACILITY AGREEMENT


 


dated 15 October 2010


 


for


 


AON CORPORATION


 


arranged by


 


CITIGROUP GLOBAL MARKETS
LIMITED

ING BANK N.V.

and

BARCLAYS CAPITAL


 


with


 


CITIBANK INTERNATIONAL plc


acting as Agent





Ref: L-182652


Linklaters LLP


 

















 


CONTENTS


 


	
  CLAUSE

  	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1

  
	
  INTERPRETATION

  
	
  1.

  	
  Definitions and interpretation

  	
  1

  
	
  SECTION 2

  
	
  THE FACILITY

  
	
  2.

  	
  The Facility

  	
  22

  
	
  3.

  	
  Purpose

  	
  24

  
	
  4.

  	
  Conditions of Utilisation

  	
  25

  
	
  SECTION 3

  
	
  UTILISATION

  
	
  5.

  	
  Utilisation

  	
  26

  
	
  6.

  	
  Optional Currencies

  	
  27

  
	
  SECTION 4

  
	
  REPAYMENT, PREPAYMENT AND
  CANCELLATION

  
	
  7.

  	
  Repayment

  	
  29

  
	
  8.

  	
  Prepayment and cancellation

  	
  29

  
	
  SECTION 5

  
	
  COSTS OF UTILISATION

  
	
  9.

  	
  Interest

  	
  33

  
	
  10.

  	
  Interest Periods

  	
  34

  
	
  11.

  	
  Changes to the calculation
  of interest

  	
  34

  
	
  12.

  	
  Fees

  	
  35

  
	
  SECTION 6

  
	
  ADDITIONAL PAYMENT OBLIGATIONS

  
	
  13.

  	
  Tax gross up and indemnities

  	
  37

  
	
  14.

  	
  Increased costs

  	
  46

  
	
  15.

  	
  Other indemnities

  	
  47

  
	
  16.

  	
  Mitigation by the Lenders

  	
  48

  
	
  17.

  	
  Costs and expenses

  	
  48

  
	
  SECTION 7

  
	
  GUARANTEE

  
	
  18.

  	
  Guarantee and indemnity

  	
  49

  
	
  SECTION 8

  
	
  REPRESENTATIONS, UNDERTAKINGS
  AND EVENTS OF DEFAULT

  
	
  19.

  	
  Representations

  	
  52

  
	
  20.

  	
  Information undertakings

  	
  57

  
	
  21.

  	
  Financial covenants

  	
  61

  
	
  22.

  	
  General undertakings

  	
  63

  
	
  23.

  	
  Events of Default

  	
  68

  
	
  SECTION 9

  
	
  CHANGES TO PARTIES

  
	
  24.

  	
  Changes to the Lenders

  	
  73

  



 


i

















 


	
  25.

  	
  Changes to the Obligors

  	
  78

  
	
  SECTION 10

  
	
  THE FINANCE PARTIES

  
	
  26.

  	
  Role of the Agent and the
  Arranger

  	
  80

  
	
  27.

  	
  Conduct of business by the
  Finance Parties

  	
  86

  
	
  28.

  	
  Sharing among the Finance
  Parties

  	
  86

  
	
  SECTION 11

  
	
  ADMINISTRATION

  
	
  29.

  	
  Payment mechanics

  	
  88

  
	
  30.

  	
  Set-off

  	
  91

  
	
  31.

  	
  Notices

  	
  91

  
	
  32.

  	
  Calculations and
  certificates

  	
  93

  
	
  33.

  	
  Partial invalidity

  	
  93

  
	
  34.

  	
  Remedies and waivers

  	
  93

  
	
  35.

  	
  Amendments and waivers

  	
  93

  
	
  36.

  	
  Confidentiality

  	
  95

  
	
  37.

  	
  Counterparts

  	
  99

  
	
  38.

  	
  Waiver of Consequential
  Damages

  	
  99

  
	
  SECTION 12

  
	
  GOVERNING LAW AND ENFORCEMENT

  
	
  39.

  	
  Governing law

  	
  100

  
	
  40.

  	
  Enforcement

  	
  100

  
	
   

  	
   

  	
   

  
	
  THE SCHEDULES

  



 


	
  SCHEDULE

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1 The Original Parties

  	
  101

  
	
  SCHEDULE 2 Conditions precedent

  	
  103

  
	
  SCHEDULE 3 Utilisation Request

  	
  108

  
	
  SCHEDULE 4 Mandatory Cost Formulae

  	
  109

  
	
  SCHEDULE 5 Form of Transfer Certificate

  	
  112

  
	
  SCHEDULE 6 Form of Assignment Agreement

  	
  115

  
	
  SCHEDULE 7 Form of Accession Letter

  	
  119

  
	
  SCHEDULE 8 Form of Resignation Letter

  	
  120

  
	
  SCHEDULE 9 Form of Compliance Certificate

  	
  121

  
	
  SCHEDULE 10 Timetables

  	
  123

  
	
  SCHEDULE 11 Form of TEG Letter

  	
  124

  
	
  SCHEDULE 12 Material Subsidiaries

  	
  126

  
	
  SCHEDULE 13 Form of Increase Confirmation

  	
  127

  



 


ii

















 


THIS AGREEMENT is dated 15 October 2010
and made between:


 


(1)                            AON CORPORATION, a company incorporated in the State
of Delaware (the “Company”);


 


(2)                            THE SUBSIDIARIES of the Company listed in Part I
of Schedule 1 (The Original Parties)
as original borrowers (the “Original
Borrowers”);


 


(3)                            CITIGROUP GLOBAL MARKETS LIMITED, ING BANK N.V.,
and BARCLAYS CAPITAL as mandated lead arrangers (whether acting individually or
together the “Arranger”);


 


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


 


(5)                            CITIBANK INTERNATIONAL plc as agent of the other
Finance Parties (the “Agent”).


 


IT IS AGREED as follows:


 


SECTION 1


 


INTERPRETATION


 


1.                                 DEFINITIONS
AND INTERPRETATION


 


1.1                           Definitions


 


In this Agreement:


 


“Acceptable Bank”
means:


 


(a)                                   a bank or financial institution which has a rating for its long-term
unsecured and non credit-enhanced debt obligations of A- or higher by Standard &
Poor’s Rating Services or Fitch Ratings Ltd or A3 or higher by Moody’s Investor
Services Limited or a comparable rating from an internationally recognised
credit rating agency; or


 


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


 


“Accession
Letter” means a document substantially in the form set out in
Schedule 6 (Form of Accession Letter).


 


“Additional
Borrower” means a company which becomes an Additional Borrower in
accordance with Clause 25 (Changes to the
Obligors).


 


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


 


“Affiliate”
means, in relation to any person, a Subsidiary of that person or a Holding
Company of that person or any other Subsidiary of that Holding Company.
Notwithstanding the foregoing, in relation to The Royal Bank of Scotland plc,
the term “Affiliate” shall include The Royal Bank of Scotland N.V. and each of
its subsidiaries or subsidiary undertakings, but shall not include (i) the
UK government or any member or instrumentality thereof, including Her Majesty’s
Treasury and UK Financial Investments Limited (or any directors, officers,
employees or entities thereof) or (ii) any persons or entities controlled
by or under common control with the UK government or any member or
instrumentality thereof (including Her Majesty’s Treasury and UK Financial
Investments Limited) and which are not part of The Royal Bank of Scotland Group
plc and its subsidiaries or subsidiary undertakings.


 

















 


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


 


“Anti-Terrorism
Laws” means the Executive Order, the USA Patriot Act and any other
law or regulation administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury.


 


“Assignment
Agreement” means an agreement substantially in the form set out in
Schedule 6 (Form of Assignment
Agreement) or any other form agreed between the relevant assignor
and assignee.


 


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


 


“Availability
Period” means the period from and including the date of this
Agreement to and including the Business Day one month before the Termination
Date.


 


“Available
Commitment” means a Lender’s Commitment minus:


 


(a)                                   the Base Currency Amount of its participation in any
outstanding Loans; and


 


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


 


other than that Lender’s participation in any
Loans that are due to be repaid or prepaid on or before the proposed
Utilisation Date.


 


“Available
Facility” means the aggregate for the time being of each Lender’s
Available Commitment.


 


“Base
Currency” or “€” means
euro.


 


“Base
Currency Amount” means, in relation to a Loan, the amount specified
in the Utilisation Request delivered by a Borrower for that Loan (or, if the
amount requested is not denominated in the Base Currency, that amount converted
into the Base Currency at the Agent’s Spot Rate of Exchange on the date which
is three Business Days before the Utilisation Date or, if later, on the date
the Agent receives the Utilisation Request) adjusted to reflect any repayment
or prepayment of the Loan.


 


“BGB”
has the meaning given to it in paragraph (c) of Clause 2.4 (Company as Obligor’s agent).


 


“Borrower”
means an Original Borrower or an Additional Borrower, unless it has ceased to
be a Borrower in accordance with Clause 25 (Changes
to the  Obligors).


 


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


 


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


 


exceeds:


 


2

















 


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


 


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


 


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


 


(b)                                  (in relation to any date for payment or purchase of
euro) any TARGET Day.


 


“Change of Control”
means the occurrence 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 Company carrying the right to exercise more than 50
per cent. of the votes exercisable at a general meeting of the Company (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 “connected
person” (as defined in Section 1122 of the CTA) of that
person).


 


“Clean-up Period” means the period
commencing on the date of this Agreement and ending on the date falling 90 days
after the date of this Agreement.


 


“Code” means the
US Internal Revenue Code of 1986, as amended, reformed or otherwise modified
from time to time.


 


“Commitment”
means:


 


(a)                                   in relation to an Original Lender the amount in the Base Currency set
opposite its name under the heading “ Commitment” in Part II of Schedule 1
(The Original Parties) and the
amount of any other Commitment transferred to it under this Agreement; and


 


(b)                                  in relation to any other Lender, the amount in the Base Currency of any
Commitment transferred to it under this Agreement,


 


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


 


“Compliance
Certificate” means a certificate substantially in the form set out
in Schedule 9  (Form of Compliance Certificate).


 


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


 


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


 


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


 


3

















 


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


 


(i)                                  is or becomes public information other than as a direct or indirect
result of any breach by that Finance Party of Clause 36 (Confidentiality);
or


 


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


 


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


 


“Confidentiality
Undertaking” means a confidentiality undertaking substantially in a
recommended form of the LMA or in any other form agreed between the Company and
the Agent.


 


“Consolidated
Interest Expense” has the meaning given to it in Clause 21 (Financial covenants).


 


“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 all members of the Group, are treated as a single employer under Section 414
of the Code and the regulations thereunder.


 


“CTA” means the
Corporation Tax Act 2009.


 


“Debt Rating Level”
means the Company’s senior unsecured long term debt rating by S&P and/or
Moody’s.


 


“Default”
means an Event of Default or any event or circumstance specified in Clause 23 (Events of Default) which would (with the
expiry of a grace period, the giving of notice, the making of any determination
under the Finance Documents or any combination of any of the foregoing) be an
Event of Default.


 


“Defaulting Lender”
means any Lender:


 


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


 


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


 


(c)                                   with respect to which an Insolvency Event has occurred and is
continuing,


 


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


 


(i)                                  its failure to pay is caused by:


 


(A)                           administrative or technical error; or


 


4

















 


(B)                             a Disruption Event; and


 


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


 


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


 


“Designated
Person” means a person (i) listed in the annex to, or otherwise
subject to the provisions of, the Executive Order; (ii) named as a “specifically
designated national and blocked Person” on the most current list published by
the Office of Foreign Assets Control of the U.S. Department of the Treasury at
its official website or any replacement website or other replacement official
publication of such list; or (iii) owned or controlled by, or acting for
or on behalf of, any person referred to in (i) or (ii) above.


 


“Disclosed Claims” means any litigation,
proceeding or investigation disclosed in (a) the Company’s annual report
on Form 10-K for the year ended 31 December 2009, (b) the
Company’s quarterly report on Form 10-Q for the fiscal quarter ended 30 June 2010
and (c) the Company’s Form 8-K dated 3 September 2010 (relating
to litigation matters), in each case as filed with the Securities and Exchange
Commission.


 


“Disposition” means the sale, transfer or
other disposition (including any sale and leaseback transaction), in each case
for consideration in any single transaction or series of related transactions
in excess of US$25,000,000 (as determined reasonably in good faith by the
Company), by any Person of any Property (including any equity interests owned
by such Person, or any notes or accounts receivable or any rights and claims
associated therewith) of such Person (or the granting of any option or other
right to do any of the foregoing).


 


“Disruption
Event” means either or both of:


 


(a)                                   a material disruption to those payment or communications systems or to
those financial markets which are, in each case, required to operate in order
for payments to be made in connection with the Facility (or otherwise in order
for the transactions contemplated by the Finance Documents to be carried out)
which disruption is not caused by, and is beyond the control of, any of the
Parties; or


 


(b)                                  the occurrence of any other event which results in a disruption (of a
technical or systems-related nature) to the treasury or payments operations of
a Party preventing that, or any other Party:


 


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


 


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


 


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


 


“Dutch
Borrower” means Aon Holdings B.V., Aon Group International B.V., Aon
Southern Europe B.V. and any Additional Borrower incorporated in the
Netherlands.


 


5

















 


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


 


“EBITDA”
has the meaning given to it in Clause 21 (Financial
covenants).


 


“English
Borrowers” means Aon Limited, Aon UK Holdings Intermediaries
Limited, Aon Benfield Limited and any Additional Borrower incorporated in
England and Wales.


 


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


 


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


 


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


 


(c)                                   land (including land under water).


 


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


 


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


 


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


 


(c)                                   relate to Hazardous Substances or health and safety
matters.


 


“ERISA” means
the US Employee Retirement Income Security Act of 1974, as amended from time to
time.


 


“ERISA 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 Company or any other member of the Controlled
Group from such Plan during a plan year in which the Company 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;


 


(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.


 


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


 


(a)                                   the applicable Screen Rate; or


 


(b)                                  (if no Screen Rate is available for the Interest
Period of that Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Agent at its request by the Reference Banks
as the rate at which the relevant Reference Bank could 


 


6

















 


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


 


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


 


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


 


“Executive
Order” means the U.S. Executive Order No. 13224 on Blocking
Property and Prohibiting Transactions with Persons who Commit, Threaten to
Commit, or Support Terrorism, which came into effect on September 23,
2001.


 


“Facility”
means the revolving loan facility made available under this Agreement as
described in Clause 2.1 (The  Facility).


 


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


 


“Fee Letter”
means any letter or letters dated on or about the date of this Agreement
between the Agent and the Company setting out any of the fees referred to in
Clause 12 (Fees).


 


“Finance
Document” means this Agreement, any Fee Letter, any Accession Letter,
any Resignation Letter and any other document designated as such by the Agent
and the Company.


 


“Finance
Party” means the Agent, the Arranger or a Lender.


 


“Financial
Indebtedness” means any indebtedness (without double counting) for
or in respect of:


 


(a)                                   moneys borrowed;


 


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


 


(c)                                   any amount raised pursuant to any note purchase
facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;


 


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


 


(e)                                   receivables sold or discounted (other than any receivables
to the extent they are sold on a non-recourse basis);


 


(f)                                     any amount raised under any other transaction
(including any forward sale or purchase agreement) required to be accounted for
as a borrowing;


 


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


 


7
















 


(h)            shares which are expressed to be redeemable at the option of the holder
prior to the Termination Date;


 


(i)             any counter-indemnity obligation in respect of a guarantee, indemnity,
bond, standby or documentary letter of credit or any other instrument issued by
a bank or financial institution; and


 


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


 


but shall exclude indebtedness for the time
being owing by one member of the Group to another member of the Group.


 


“Financial Year”
means the twelve month accounting period of the Company in respect of which it
prepares its audited consolidated financial statements.


 


“French
Borrower” means any Additional Borrower incorporated in France.


 


“GAAP”
means, in relation to a company, generally accepted accounting principles,
standards and practices in the jurisdiction of its incorporation.


 


“German
Borrower” means any Additional Borrower incorporated in the Federal
Republic of Germany.


 


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


 


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


 


“Hedging Agreement”
means any interest rate protection agreement, foreign currency exchange
agreement, commodity price protection agreement or other interest or currency
exchange rate or commodity price hedging arrangement and all other similar
agreements or arrangements designed to alter the risks of any Person arising
from fluctuations in interest rates, currency values or commodity prices.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(i)           its failure to pay is caused by:


 


8

















 


(A)                           administrative or technical error; or


 


(B)                             a Disruption Event; and


 


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


 


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


 


“Increase
Confirmation” means a confirmation substantially in the form set out
in Schedule 13 (Form of Increase
Confirmation).


 


“Increase
Lender” has the meaning given to that term in Clause 2.2 (Increase).


 


“Information
Package” means the documents approved by the Company posted on the
debt domain site entitled “Aon Corporation — Oct 2010”.


 


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


 


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


 


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


 


(c)                                   makes a general assignment, arrangement or composition with or for the benefit
of its creditors;


 


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


 


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


 


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


 


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


 


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


 


9

















 


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


 


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


 


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


 


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


 


“Interest
Period” means, in relation to a Loan, each period determined in
accordance with Clause 10 (Interest Periods)
and, in relation to an Unpaid Sum, each period determined in accordance with
Clause 9.3 (Default interest).


 


“ITA” means the
Income Tax Act 2007.


 


“Lender”
means:


 


(a)                                   any Original Lender; and


 


(b)                                  any bank, financial institution, trust, fund or other
entity which has become a Party in accordance with Clause 24 (Changes to the Lenders),


 


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


 


“LIBOR”
means, in relation to any Loan in a currency other than Euro:


 


(a)                                   the applicable Screen Rate; or


 


(b)                                  (if no Screen Rate is available for the currency or
Interest Period of that Loan) the arithmetic mean of the rates (rounded upwards
to four decimal places) as supplied to the Agent at its request by the
Reference Banks at the rate at which the relevant Reference Bank could borrow
funds in the London interbank market in the relevant currency and for the
relevant period, were it to do so by asking for and then accepting interbank
offers for deposits in reasonable market size in that currency and for that
period,


 


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


 


“LMA”
means the Loan Market Association.


 


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


 


10

















 


“Luxembourg
Borrower” means Aon Finance
Luxembourg S.à r.l., Aon Financial Services Luxembourg S.A., and any Additional Borrower incorporated under the
laws of the Grand Duchy of Luxembourg.


 


“Majority
Lenders” means:


 


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


 


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


 


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


 


“Margin”
means, in relation to a particular Interest Period, the rate per annum
determined by reference to the credit ratings assigned by Moody’s and S&P
to the Company’s long-term senior unsecured debt not credit enhanced (each a “long term credit rating”) last published
(and not withdrawn) before the Quotation Day for that Interest Period, in
accordance with the following table:


 


	
  Row

  	
   

  	
  Rating

  	
   

  	
  Margin (per cent. p.a.)

  
	
  1.

  	
   

  	
  A-/A3 or above

  	
   

  	
  0.75

  
	
  2.

  	
   

  	
  BBB+/Baa1

  	
   

  	
  0.9

  
	
  3.

  	
   

  	
  BBB/Baa2

  	
   

  	
  1.1

  
	
  4.

  	
   

  	
  BBB-/Baa3 or below

  	
   

  	
  1.35

  



 


However:


 


(a)                                   in the case of a split between the two long-term
credit ratings assigned by Moody’s and S&P, the Margin will be calculated
as the average of the Margins that are set out in the above table and that
apply to each of the split long-term credit ratings assigned by Moody’s and
S&P; and


 


(b)                                  if there is no, or only one, current long-term credit
rating, or whilst an Event of Default is outstanding, the Margin will be the
applicable rate set out in row 4 above.


 


“Margin Stock”
has the meaning given to it under Regulation U.


 


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


 


(a)                                   the business, condition (financial or otherwise),
assets, performance, prospects or results of operations of the Group taken as a
whole;


 


(b)                                  the ability of the Company to perform its obligations
under the Finance Documents; or


 


11

















 


(c)                                   the validity or enforceability of any Finance Document
or the rights or remedies of the Finance Parties thereunder.


 


“Material
Subsidiary” means:


 


(a)                                   a Subsidiary of the Company the total assets or total revenues of which
(consolidated where that Subsidiary itself has Subsidiaries) as at the date as
at which its latest audited consolidated financial statements were prepared
account for 5 per cent. or more of the consolidated total assets or total
revenues of the Group (calculated by reference to the then latest audited
financial statements of the Group); or


 


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


 


For the purposes of this definition:


 


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


 


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


 


“Merger”
means the merger of Merger Sub with and into the Target pursuant to the Merger
Agreement.


 


“Merger
Agreement” means the agreement and plan of merger dated 11 July 2010
among the Company, Merger LLC, Merger Sub and Target.


 


“Merger Cash
Consideration” means an aggregate amount of approximately
US$2,450,000,000 in cash to be paid to the equity holders of Target pursuant to
the Merger Agreement.


 


“Merger LLC”
means Aon Hewitt LLC (formerly known as Alps Merger LLC), a Delaware limited
liability company and a wholly owned Subsidiary of the Company.


 


“Merger Sub”
means Alps Merger Corp., a Delaware corporation and a wholly owned Subsidiary
of the Company.


 


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


 


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


 


12

















 


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


 


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


 


“Moody’s”
means Moody’s Investors Service, Inc..


 


“Multiemployer Plan”
means a Plan maintained pursuant to a collective bargaining agreement or any
other arrangement to which the Company or any member of the Controlled Group is
a party to which more than one employer is obligated to make contributions.


 


“New Lender”
has the meaning given to it in Clause 24 (Changes
to the Lenders).


 


“Net Worth”
means at any date the consolidated stockholders’ equity of the Company and its
consolidated Subsidiaries (for the avoidance of doubt this definition shall be
construed so as to be consistent with US GAAP).


 


“Obligor”
means a Borrower or the Company.


 


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


 


“Original
Financial Statements” means:


 


(a)                                   in relation to the Company, the audited consolidated
financial statements of the Group for the Financial Year ended 31 December 2009;


 


(b)                                  in relation to each of Aon Southern Europe B.V. and
Aon Group International B.V., its unaudited financial statements for the financial
year ended 31 December 2009; and


 


(c)                                   in relation to each Original Obligor other than the
Company, Aon Southern Europe B.V., and Aon Group International B.V., its
audited financial statements for its financial year ended 31 December 2009.


 


“Original
Obligor” means an Original Borrower or the Company.


 


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


 


“Party”
means a party to this Agreement.


 


“PBGC” means the
Pension Benefit Guaranty Corporation or any successor thereto.


 


“Permitted Security”
means:


 


(a)                                   any Security 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 day-to-day business;


 


(c)                                   any retention of title to goods supplied to a member of the Group in the
day-to-day course of business;


 


(d)                                  Security for taxes, assessments or governmental charges or levies on the
assets of any member of the Group if the same shall not at the time be
delinquent or thereafter can be 


 


13

















 


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 day-to-day course of
business 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;


 


(f)                                     Security 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 Security 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;


 


(h)                                  Security created by any member of the Group over deposits and
investments in the ordinary course of such member of the Group’s insurance and
reinsurance trade to comply with the requirements of any regulatory body of
insurance or insurance broking business;


 


(i)                                      Security over and limited to the balance of credit balances on bank
accounts of members of the Group created in order to facilitate the operation
of such bank accounts and other bank accounts of such members of the Group on a
net balance basis with credit balances and debit balances on the various
accounts being netted off for interest purposes;


 


(j)                                      any Security arising for the benefit of a credit institution pursuant to
Clause 24 General Banking Conditions of the Netherlands Bankers
Association (Algemene Voorwaarden
van de Nederlandse Vereniging van Banken)
in respect of any bank account held with a credit institution; and


 


(k)                                   Security not otherwise permitted pursuant to paragraphs (a) to (j) above
inclusive over assets securing obligations in an aggregate amount not exceeding
an amount equal to 10 per cent. of the Net Worth of the Company (as shown in
the Company’s most recent audited consolidated financial statements).


 


“Person” means any natural person,
corporation, firm, joint venture, partnership, association, enterprise, limited
liability company, trust or other entity or organisation, or any government or
political subdivision or any agency, department or instrumentality thereof.


 


“Plan” means an
employee pension benefit plan, as defined in Section 3(2) of ERISA,
as to which the Company or any member of the Controlled Group may have any
liability.


 


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


 


“Property”
of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated
by such Person.


 


14

















 


“Qualifying
Lender” has the meaning given to it in Clause 13 (Tax gross up and indemnities).


 


“Quarter Date”
means each 31 March, 30 June, 30 September and 31 December in each
Financial Year of the Company.


 


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


 


(a)                                   (if the currency is sterling) the first day of that
period;


 


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


 


(c)                                   (for any other currency) two Business Days before the
first day of that period,


 


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


 


“Reference
Banks” means in relation to LIBOR and EURIBOR and Mandatory Cost the
principal London offices of Citibank, N.A., ING Bank N.V. and Barclays Bank PLC
or such other banks as may be agreed between the Agent (acting on the
instructions of the Majority Lenders) and the Company.


 


“Regulation “U” or “X” means
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.


 


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


 


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


 


“Relevant
Period” has the meaning given to it in Clause 21 (Financial covenants).


 


“Repeating
Representations” means each of the representations set out in
Clauses 19.1 (Status), 19.2 (Binding obligations), 19.3 (Non-conflict with other obligations), 19.4
(Power and authority), 19.5 (Validity and admissibility in evidence),
19.6 (No default),  19.7 (No
breach), 19.8 (No misleading
information), 19.9 (Financial
statements), 19.10 (Pari passu
ranking), 19.11 (No proceedings
pending or threatened), 19.12 (Compliance
with laws and regulations), 19.17 (ERISA),
19.18 (Federal Reserve Regulations),
19.19 (Investment Company), 19.20
(Ownership of Properties), Clause
19.22 (Insurance Licences),
paragraphs (a) and (b) of Clause 19.23 (Dutch
Borrowers) and Clause 19.26 (Governing
law and enforcement).


 


15

















 


“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 failure to meet the minimum funding
standard of Section 412 or 430 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(c) of the Code.


 


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


 


“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 Act 1980,
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, any general principles of law relating to choice of law or
recognition of foreign judgments 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 and any other general principles of
law limiting its obligations which are specifically set out in the legal
opinions provided pursuant to Clause 4.1 (Initial
conditions precedent).


 


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


 


“Rollover
Loan” means one or more Loans:


 


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


 


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


 


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


 


(d)                                  made or to be made to the same Borrower for the
purpose of refinancing the maturing Loan(s).


 


“S&P”
means Standard & Poor’s Ratings Services, a division of McGraw-Hill
Companies, Inc.


 


“Screen Rate”
means:


 


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


 


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


 


16

















 


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


 


“Security”
means a mortgage, charge, pledge, lien or other security interest securing any
obligation of any person or any other agreement or arrangement entered into for
the purpose, with the intention or which has the effect of preferring creditors
on an insolvency of any person.


 


“Senior Notes”
means the up to US$1,500,000,000 in aggregate principal amount of senior
unsecured notes of the Company issued in a public offering or in a Rule 144A
or other private placement.


 


“Single Employer Plan”
means a Plan subject to Title IV of ERISA maintained by the Company or any
member of the Controlled Group for employees of the Company or any member of
the Controlled Group, other than a Multiemployer Plan.


 


“Specified
Time” means a time determined in accordance with Schedule 10 (Timetables).


 


“Subsequent
Merger” means the merger of the surviving corporation in the Merger
with and into Merger LLC, with Merger LLC surviving as a wholly owned
Subsidiary of the Company.


 


“Subsidiary”
means a subsidiary within the meaning of section 1159 of the Companies Act 2006
and, for the purpose of Clause 21 (Financial
covenants) and in relation to
financial statements of the Group, a subsidiary undertaking within the meaning
of section 1162 of the Companies Act 2006.


 


“Substantial Portion”
means assets which:


 


(a)                                   represent more than 10 per cent. of the consolidated
assets of the Group, as shown in the most recent quarterly consolidated
quarterly statements of the Company delivered to the Agent pursuant to Clause
20.1(b) (Financial statements)
preceding the date on which such determination is made; or


 


(b)                                  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 financial statements delivered
to the Agent pursuant to Clause 20.1(b) (Financial
statements).


 


“Target”
means Hewitt Associates, Inc., a Delaware corporation.


 


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


 


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


 


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


 


17
















 


“Term Loan
Agreement” means the three-year credit agreement dated 13 August 2010
to finance, amongst other things, the acquisition of Target, between the
Company, Credit Suisse AG as administrative agent, and the lenders and agents
party thereto as it may be amended or modified and in effect from time to time
to the extent permitted thereunder.


 


“Term Loan
Closing Date” means the “Closing Date” as defined in the Term Loan
Agreement.


 


“Termination
Date” means the date which is 5 years after the date of the Agreement.


 


“Total
Commitments” means the aggregate of the Commitments being
€650,000,000 at the date of this Agreement.


 


“Transactions”
means (i) the Merger and the Subsequent Merger, including the payment of
the Merger Consideration, (ii) the execution, delivery and performance of
the Term Loan Agreement, (iii) the issuance of the Senior Notes and (iv) payment
of the Transaction Costs.


 


“Transaction
Costs” means fees and expenses in aggregate amount not to exceed
US$50,000,000 in connection with the Transactions.


 


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


 


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


 


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


 


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


 


“Undisclosed
Administrator” means, in relation to a Lender, the appointment of an
administrator, provisional liquidator, conservator, receiver, trustee,
custodian or other similar official by a supervisory authority or regulator
under or based on the law in the country where such Lender is subject to home
jurisdiction supervision if applicable law requires that such appointment is
not to be publicly disclosed.


 


“Unfunded Current Liability”
of any Single Employer Plan means the amount, if any, by which the value of the
accumulated plan benefits under the Plan exceeds the fair market value of all
plan assets allocable to such liabilities under Title IV of ERISA (excluding
any accrued or unpaid contributions).


 


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


 


“US” or “United States” means the United States of America.


 


“US
Bankruptcy Law” means the United States Bankruptcy Code of 1978, as
amended from time to time, or any other United States federal or state
bankruptcy, insolvency or similar law.


 


“US Facility Agreement”
means the US$400,000,000 three year credit agreement between, amongst others,
the Company and Citibank N.A. as Administrative Agent dated 4 December 2009
(as it may be amended or modified and in effect from time to time).


 


18

















 


“US
Fraudulent Transfer Law” means any applicable US Bankruptcy Law
(including, without limitation, Section 548 of Title 11 of the United
States Bankruptcy Code) or any US federal or state fraudulent transfer or
conveyance statute and any related case law.


 


“USA Patriot
Act” means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Public Law 107-56 of the United States.


 


“Utilisation”
means a utilisation of the Facility.


 


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


 


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


 


“VAT”
means, within the European Union, any tax imposed in compliance with (but
subject to derogations from) the Council Directive 2006/112/EC of 28 November 2006
on the common system of value added tax and, outside the European Union, any
other tax levied by reference to added value or sales or tax of a similar
nature.


 


1.2         Construction


 


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


 


(i)             the “Agent”,
the “Arranger”, any “Finance  Party”,
any “Lender”, any “Obligor” or any “Party”  shall be
construed so as to include its successors in title, permitted assigns and
permitted transferees;


 


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


 


(iii)           “Barclays Capital”
is a reference to Barclays Capital, the investment division of Barclays Bank
PLC;


 


(iv)          a “composition”
or “other arrangement for the benefit of
creditors” includes a procédure
de conciliation and mandat ad hoc
under Livre Sixième of the French Code de commerce;


 


(v)           a “compulsory
manager”, “receiver”,
or “administrator” includes an administrateur judiciaire, mandataire ad hoc, conciliateur and mandataire liquidateur or any other person
appointed as a result of any proceedings described under Livre Sixième of the French Code de commerce;


 


(vi)          “dollars”
or “US$” means the lawful currency
for the time being of the United States of America.


 


(vii)         “euro” or
“€” refers to the single currency
for the time being of the states which have adopted the euro in accordance with
legislation of the European Community relating to Economic and Monetary Union.


 


(viii)        a “Finance
Document” or any other agreement
or instrument is a reference to that Finance Document or other agreement or
instrument as amended, novated, 


 


19

















 


supplemented,
extended, restated (however fundamentally and whether or not more
onerously) or replaced and includes any change in the purpose of, any extension
of or any increase in any facility or the addition of any new facility under
that Finance Document or other agreement or instrument;


 


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


 


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


 


(xi)           a person “being
unable to pay its debts” or “insolvent”
includes that person being in a state of cessation
des paiements, and a “winding-up”, “administration” or “dissolution”
includes a redressement judiciaire, cession
totale de l’entreprise, liquidation judiciaire or a procédure de sauvegarde, all within the
meaning of Livre Sixième of the
French Code de commerce;


 


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


 


(xiii)         “sterling”
or “£” means the lawful currency
for the time being of the United Kingdom;


 


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


 


(xv)          a time of day is a reference to London time.


 


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


 


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


 


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


 


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


 


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


 


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


 


(iii)           insolvency includes a bankruptcy, moratorium and
emergency regulation (noodregeling);


 


(iv)          a trustee in bankruptcy includes a curator;


 


(v)           an administrator includes a bewindvoerder;


 


(vi)          “security right” includes any mortgage (hypotheek), pledge (pandrecht),
financial collateral agreement (financiëlezekerheidsovereenkomst),
retention of title arrangement (eigendomsvoorbehoud),
right of retention (recht van retentie),
right to reclaim goods 


 


20

















 


(recht van reclame), and, in general, any right in rem (beperkt recht), created for the purpose of granting security
(goederenrechtelijke zekerheid);


 


(vii)         an attachment includes a beslag;
and


 


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


 


1.3         Third Party Rights


 


A person who is not a Party has no right under
the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the
benefit of any term of this Agreement.


 


21

















 


SECTION 2


 


THE FACILITY


 


2.           THE FACILITY


 


2.1         The Facility


 


Subject to the terms of this Agreement, the
Lenders make available to the Borrowers a multicurrency revolving loan facility
in an aggregate amount equal to the Total Commitments.


 


2.2         Increase


 


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


 


(i)             the Available Commitments of a Defaulting Lender in
accordance with Clause 8.7 (Right of
cancellation in relation to a Defaulting Lender); or


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


22

















 


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


 


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


 


(d)         Unless the Agent otherwise agrees or the increased
Commitment is assumed by an existing Lender, the Company shall, on the date
upon which the increase takes effect, pay to the Agent (for its own account) a
fee of US$2,000 and the Company shall promptly on demand pay the Agent the
amount of all costs and expenses (including legal fees) reasonably incurred by
it in connection with any increase in Commitments under this Clause 2.2.


 


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


 


(f)          Clause 24.4 (Limitation
of responsibility of Existing Lenders) shall apply mutatis mutandis
in this Clause 2.2 in relation to an Increase Lender as if references in that
Clause to:


 


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


 


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


 


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


 


2.3         Finance Parties’ rights and
obligations


 


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


 


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


 


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


 


2.4         Company as Obligors’ agent


 


By executing this Agreement (or in the case of
Additional Borrowers by their execution of Accession Letters), each Obligor:


 


(a)            irrevocably authorises the Company to act on its
behalf as its agent in relation to the Finance Documents, including:


 


23

















 


(i)           to give and receive as agent on its behalf all notices,
consents and instructions (including Utilisation Requests);


 


(ii)          to supply on its behalf all information concerning
itself, its financial condition or otherwise to the relevant persons
contemplated under this Agreement;


 


(iii)         to agree, accept and sign on its behalf all documents
in connection with the Finance Documents (including amendments, restatements
and variations of and consents under any Finance Documents and to execute any
new Finance Documents); and


 


(iv)         to take such other action as may be necessary or
desirable under or in connection with the Finance Documents;


 


(b)           confirms that it will be bound by any omission,
agreement, undertaking, settlement, waiver, notice, communication or notice or
other action taken by the Company under or in connection with the Finance
Documents (whether or not known to any other Obligor and whether occurring
before or after such Obligor became an Obligor under this Agreement) and each
Finance Party may rely on any action purported to be taken by the Company on behalf
of any Obligor; and


 


(c)            (other than the Company) hereby releases the Company
from the restrictions set out in section 181 of the German Civil Code (Bürgerliches Gesetzbuch) (the “BGB”)
or similar restrictions arising pursuant to any other applicable law.


 


2.5         Acts of the Company


 


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


 


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


 


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


 


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


 


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


 


3.           PURPOSE


 


3.1         Purpose


 


Each Borrower shall apply all amounts borrowed
by it under the Facility for its general corporate purposes (including
refinancing existing Financial Indebtedness).


 


3.2         Monitoring


 


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


 


24

















 


4.           CONDITIONS OF UTILISATION


 


4.1         Initial conditions precedent


 


No Borrower may deliver a Utilisation Request
unless the Agent has received all of the documents and other evidence listed in
Part I of Schedule 2 (Conditions precedent)
in form and substance satisfactory to the Agent. The Agent shall notify the
Company and the Lenders promptly upon being so satisfied.


 


4.2         Further conditions precedent


 


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


 


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


 


(ii)            the Repeating Representations to be made by the
Company (in relation to itself and each other Obligor as applicable) are true
in all material respects and will be immediately after the Loan is made; and


 


(iii)           in respect of the most recently ended testing period
(in circumstances where the Company has not yet delivered a Compliance
Certificate in respect of such testing period), the Agent has not received
evidence that any financial covenants set out in Clause 21 (Financial Covenants) will not be complied
with for that testing period.


 


4.3         Conditions relating to Optional
Currencies


 


(a)         A currency will constitute an Optional Currency in
relation to a Loan if:


 


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


 


(ii)            it is sterling or US dollars or has been approved by
the Agent (acting on the instructions of all the Lenders) on or prior to
receipt by the Agent of the Utilisation Request for that Loan.


 


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


 


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


 


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


 


4.4         Maximum number of Loans


 


(a)         A Borrower may not deliver a Utilisation Request if as
a result of the proposed Utilisation more than 12 Loans would be outstanding.


 


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


 


25

















 


SECTION 3


 


UTILISATION


 


5.           UTILISATION


 


5.1         Delivery of a Utilisation Request


 


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


 


5.2         Completion of a Utilisation
Request


 


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


 


(i)             the proposed Utilisation Date is a Business Day within
the Availability Period;


 


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


 


(iii)           the proposed Interest Period complies with Clause 10 (Interest Periods); and


 


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


 


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


 


5.3         Currency and amount


 


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


 


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


 


(i)                                      if the currency selected is the Base Currency, a
minimum of €10,000,000 (and an integral multiple of €1,000,000) or, if less,
the Available Facility;


 


(ii)                                   if the currency selected is sterling or US dollars a
minimum of £5,000,000 and US$10,000,000 respectively or, if less, the Available
Facility; or


 


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


 


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


 


5.4         Lenders’ participation


 


(a)         If the conditions set out in this Agreement have been
met and subject to Clause 7.1 (Repayment of
Loans), each Lender shall make its participation in each Loan
available by the Utilisation Date through its Facility Office.


 


26

















 


(b)         The amount of each Lender’s participation in each Loan
will be equal to the proportion borne by its Available Commitment to the
Available Facility immediately prior to making the Loan.


 


(c)         The Agent shall determine the Base Currency Amount of
each Loan which is to be made in an Optional Currency and shall notify each
Lender of the amount, currency and the Base Currency Amount of each Loan and
the amount of its participation in that Loan (and, if different, the amount of
that participation to be made available in cash), in each case by the Specified
Time.


 


5.5         Cancellation of Commitment


 


The Commitments
which, at that time, are unutilised shall be immediately cancelled at the end
of the Availability Period.


 


5.6         Designated Entities


 


Where a Lender (each a “Designating Lender”) has designated in the
signature pages to this Agreement or in writing to the Agent and the
Company (and agreed in writing by the Company) an Affiliate of itself (each a “Designated Entity”) as its Facility Office
for the purpose of participating in or making Loans to a Borrower in a
particular jurisdiction, the Parties unconditionally and irrevocably agree that
such Designated Entity shall:


 


(a)            not have any Commitment (without prejudice to the
Designated Lender’s Commitment);


 


(b)           be entitled to all rights and benefits (other than
voting rights which shall remain with the Designating Lender) under this
Agreement relating to its participation in any Loan to a Borrower in such
designated jurisdiction; and


 


(c)            have the corresponding duties of a Lender in relation
to such Loans, and shall be a party to this Agreement for that purpose.


 


Such Designating Lender will procure, subject
to the terms of this Agreement, that the Designated Entity participates in a
Loan to any Borrower in the relevant designated jurisdiction in place of such
Designating Lender and the Parties to the Agreement shall be entitled to treat
such Designated Entity as a Lender accordingly.


 


6.           OPTIONAL CURRENCIES


 


6.1         Selection of currency


 


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


 


6.2         Unavailability of a currency


 


If before the Specified Time on any Quotation
Day:


 


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


 


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


 


the Agent will give notice to the relevant
Borrower to that effect by the Specified Time on that day. In this event, any
Lender that gives notice pursuant to this Clause 6.2 will be required to
participate in the Loan in the Base Currency (in an amount equal to that Lender’s
proportion of


 


27
















 


the Base Currency Amount or, in respect of a
Rollover Loan, an amount equal to that Lender’s proportion of the Base Currency
Amount of the Rollover Loan that is due to be made) and its participation will
be treated as a separate Loan denominated in the Base Currency during that
Interest Period.


 


28

















 


SECTION 4


 


REPAYMENT, PREPAYMENT AND
CANCELLATION


 


7.                                 REPAYMENT


 


7.1                           Repayment of Loans


 


(a)                            Each Borrower which has drawn a Loan shall repay that
Loan on the last day of its Interest Period.


 


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


 


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


 


(ii)            in the same currency as the maturing Loan (unless it
arose as a result of the operation of Clause 6.2 (Unavailability
of a currency)); and


 


(iii)           for the purpose of refinancing the maturing Loan,


 


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


 


(A)         if the amount of the maturing Loan exceeds the
aggregate amount of the new Loans:


 


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


 


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


 


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


 


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


 


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


 


8.                                 PREPAYMENT AND CANCELLATION


 


8.1                           Illegality


 


If it becomes unlawful in any applicable
jurisdiction for a Lender to perform any of its obligations as contemplated by
this Agreement or to fund or maintain its participation in any Loan:


 


29

















 


(a)            that Lender shall promptly notify the Agent upon
becoming aware of that event;


 


(b)           upon the Agent notifying the Company, the Commitment
of that Lender will be immediately cancelled; and


 


(c)            each Borrower shall repay that Lender’s participation
in the Loans made to that Borrower on the last day of the Interest Period for
each Loan occurring after the Agent has notified the Company or, if earlier,
the date specified by the Lender in the notice delivered to the Agent (being no
earlier than the last day of any applicable grace period permitted by law).


 


8.2                           Change of control


 


(a)                            If there is a Change of Control:


 


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


 


(ii)            a Lender shall not, subject to paragraph (b) below,
be obliged to fund a Utilisation (except for a Rollover Loan); and


 


(iii)           if a Lender so requires and notifies the Agent within
30 days of the Company notifying the Agent of the event, the Agent shall:


 


(A)         as from the date of such notification cancel the
Commitment of that Lender whereupon the Commitment of that Lender will be
cancelled; and


 


(B)          declare the participation of that Lender in all
outstanding Loans, together with accrued interest, and all other amounts
accrued under the Finance Documents and owing to that Lender due and payable,
whereupon all such outstanding amounts will become due and payable within 60
days of the Change of Control.


 


(b)                           If a Lender has not notified the Agent that it wishes
to cancel its Commitment in accordance with paragraph (a) (iii) above,
then that Lender may not refuse to fund a Utilisation as a result of the Change
of Control from the date falling 30 days after the Company has notified the
Agent of the event.


 


8.3                           Voluntary cancellation


 


The Company may, if it gives the Agent not less
than 15 Business Days’ (or such shorter period as the Majority Lenders may
agree) prior notice, cancel the whole or any part (being a minimum amount of €10,000,000
(and an integral multiple of €5,000,000)) of the Available Facility.  Any cancellation under this Clause 8.3 shall
reduce the Commitments of the Lenders rateably.


 


8.4                           Voluntary prepayment of Loans


 


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


 


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


 


(a)                            If:


 


(i)             any sum payable to any Lender by an Obligor is
required to be increased under paragraph (c) of Clause 13.2 (Tax gross up); or


 


30

















 


(ii)            any Lender claims indemnification from the Company
under Clause 13.3 (Tax indemnity)
or Clause 14 (Increased costs),


 


the Company may, whilst the circumstance giving
rise to the requirement for that increase or indemnification continues, give
the Agent notice of cancellation of the Commitment of that Lender and its
intention to procure the repayment of that Lender’s participation in the Loans
or give the Agent notice of its intention to replace that Lender in accordance
with paragraph (d) below.


 


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


 


(c)                            On the last day of each Interest Period which ends
after the Company has given notice of cancellation under paragraph (a) above
(or, if earlier, the date specified by the Company in that notice), each
Borrower to which a Loan is outstanding shall repay that Lender’s participation
in that Loan.


 


(d)                           The Company may, in the circumstances set out in
paragraph (a) above, on 10 Business Days’ prior notice to the Agent and
that Lender, replace that Lender by requiring that Lender to (and, to the
extent permitted by law, that Lender shall) transfer pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of its
rights and obligations under this Agreement to a Lender or other bank,
financial institution, trust, fund or other entity selected by the Company
which confirms its willingness to assume and does assume all the obligations of
the transferring Lender in accordance with Clause 24 (Changes to
the Lenders) for a purchase price in cash or other cash payment
payable at the time of the transfer equal to the outstanding principal amount
of such Lender’s participation in the outstanding Loans and all accrued
interest (to the extent that the Agent has not given a notification under
Clause 24.9 (Pro rata interest settlement)),
Break Costs and other amounts payable in relation thereto under the Finance
Documents.


 


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


 


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


 


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


 


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


 


8.6                           Restrictions


 


(a)                            Any notice of cancellation or prepayment given by any
Party under this Clause 8.6 shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or dates upon
which the relevant cancellation or prepayment is to be made and the amount of
that cancellation or prepayment.


 


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


 


31

















 


(c)                            Unless a contrary indication appears in this
Agreement, any part of the Facility which is prepaid or repaid may be
reborrowed in accordance with the terms of this Agreement.


 


(d)                           The Borrowers shall not repay or prepay all or any
part of the Loans or cancel all or any part of the Commitments except at the
times and in the manner expressly provided for in this Agreement.


 


(e)                            Subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled
under this Agreement may be subsequently reinstated.


 


(f)                              If the Agent receives a notice under this Clause 8 it
shall promptly forward a copy of that notice to either the Company or the
affected Lender, as appropriate.


 


8.7                           Right of cancellation in relation
to a Defaulting Lender


 


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


 


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


 


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


 


32

















 


SECTION 5


 


COSTS OF UTILISATION


 


9.                                 INTEREST


 


9.1                           Calculation of interest


 


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


 


(a)            Margin;


 


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


 


(c)            Mandatory Cost, if any.


 


9.2                           Payment of interest


 


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


 


9.3                           Default interest


 


(a)                            If an Obligor fails to pay any amount payable by it
under a Finance Document on its due date, interest shall accrue on the overdue
amount from the due date up to the date of actual payment (both before and
after judgment) at a rate which, subject to paragraph (b) below, is the
sum of 1 per cent and the rate which would have been payable if the overdue
amount had, during the period of non-payment, constituted a Loan in the
currency of the overdue amount for successive Interest Periods, each of a
duration selected by the Agent (acting reasonably).  Any interest accruing under this Clause 9.3
shall be immediately payable by the Obligor on demand by the Agent.


 


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


 


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


 


(ii)            the rate of interest applying to the overdue amount
during that first Interest Period shall be the sum of 1 per cent and the rate
which would have applied if the overdue amount had not become due, subject to
any applicable restrictions under French law.


 


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


 


9.4                           Notification of rates of interest


 


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


 


9.5                           Italian Usury Law


 


Notwithstanding any other provision contained
in this Agreement, if at any time the interest rate stated to be applicable
under this Agreement would cause a breach of Italian law No. 108/1996 


 


33

















 


(the “Italian
Usury Law”), then the rate of interest payable by an Obligor
incorporated in Italy under this Agreement shall be capped at the maximum rate
permitted to be payable under the Italian Usury Law.


 


10.                           INTEREST PERIODS


 


10.1                     Selection of Interest Periods


 


(a)                            A Borrower (or the Company on behalf of a Borrower)
may select an Interest Period for a Loan in the Utilisation Request for that
Loan.


 


(b)                           Subject to this Clause 10, a Borrower (or the Company)
may select an Interest Period of 1, 2, 3 or 6 Months or any other period agreed
between a Borrower (or the Company) and the Agent (acting on the instructions
of all the Lenders in relation to the relevant Loan).


 


(c)                            An Interest Period for a Loan shall not extend beyond
the Termination Date.


 


(d)                           A Loan has one Interest Period only.


 


10.2                     Non-Business Days


 


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


 


10.3                     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 shall be as set
out in a letter from the Agent to a French Borrower in the form of the letter
at Schedule 11 (Form of TEG letter)
on the date of the accession of a French Borrower to this Agreement.


 


11.                           CHANGES TO THE CALCULATION OF
INTEREST


 


11.1                     Absence of quotations


 


Subject to Clause 11.2 (Market disruption), if LIBOR or, if
applicable, EURIBOR is to be determined by reference to the Reference Banks but
a Reference Bank does not supply a quotation by the Specified Time on the
Quotation Day, the applicable LIBOR or EURIBOR shall be determined on the basis
of the quotations of the remaining Reference Banks.


 


11.2                     Market disruption


 


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


 


(i)             the Margin;


 


(ii)            the rate notified to the Agent by that Lender as soon
as practicable and in any event before close of business on the Quotation Day
(or, if earlier, before interest is due to be paid in respect of that Interest
Period), to be that which expresses as a percentage rate per annum the cost to
that Lender of funding its participation in that Loan from whatever source it
may reasonably select; and


 


34

















 


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


 


(b)                           If:


 


(i)             the percentage rate per annum notified by a Lender
pursuant to paragraph (a)(ii) above is less than LIBOR or, in relation to
any Loan in euro, EURIBOR; or


 


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


 


the cost to that Lender of funding its
participation in that Loan for that Interest Period shall be deemed, for the
purposes of paragraph (a) above, to be LIBOR or, in relation to any Loan
in euro, EURIBOR.


 


(c)                            In this Agreement “Market
Disruption Event” means:


 


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


 


(ii)            before close of business in London on the Quotation
Day for the relevant Interest Period, the Agent receives notifications from a
Lender or Lenders (whose participations in a Loan exceed 35 per cent. of that
Loan) that the cost to it of funding its participation in that Loan from
whatever source it may reasonably select would be in excess of LIBOR or, if
applicable, EURIBOR.


 


11.3                     Alternative basis of interest or
funding


 


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


 


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


 


11.4                     Break Costs


 


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


 


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


 


12.                           FEES


 


12.1                     Commitment fee


 


(a)                            The Company shall pay to the Agent (for the account of
each Lender) a fee in the Base Currency computed on a day to day basis at a
percentage rate per annum equal to 35 per cent. of the applicable Margin which
would apply to a Loan drawn on that day under the Facility, such fee to be paid
on that Lender’s Available Commitment for the Availability Period.


 


35

















 


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


 


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


 


12.2                     Participation fee


 


The Company shall pay to the Agent (for the
account of each Lender) a participation fee in the amount and at the times
agreed in a Fee Letter.


 


12.3                     Agency fee


 


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


 


12.4                     Utilisation fee


 


(a)                            The Company shall pay to the Agent (for the account of
each relevant Lender) a utilisation fee in the Base Currency computed at the
rate of:


 


(i)             0.25 per cent. per annum calculated from day to day on
the amount of all Loans then outstanding during the Availability Period at such
time when the aggregate amount of the Lenders’ participations in all Loans then
outstanding exceeds €216,666,667 on that day; and


 


(ii)            0.50 per cent. per annum calculated from day to day on
the amount of all Loans then outstanding during the Availability Period at such
time when the aggregate amount of the Lenders’ participations in all Loans then
outstanding exceeds €433,333,333 on that day.


 


(b)                           The accrued utilisation fee is payable on the last day
of each successive period of three Months which ends during the Availability
Period and on the last day of the Availability Period, and in respect of a
Lender, on the last day on which any part of its participation in the Loans
becomes repayable.


 


36

















 


SECTION 6


 


ADDITIONAL PAYMENT
OBLIGATIONS


 


13.                           TAX GROSS UP AND INDEMNITIES


 


13.1                     Definitions


 


(a)                            In this Agreement:


 


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


 


“Qualifying
Lender” means:


 


(i)             with respect to an English Borrower (including, for
the avoidance of doubt, any payment by the Company as guarantor on behalf of
such Borrower):


 


(A)         a Lender (other than a Lender within sub-paragraph (B) below)
which is beneficially entitled to interest payable to that Lender in respect of
an advance under a Finance Document and is:


 


(I)               a Lender:


 


1.            which is a bank (as defined for the purpose of section 879 of the ITA)
making an advance under a Finance Document; or


 


2.            in respect of an advance made under a Finance Document by a person that
was a bank (as defined for the purpose of section 879 of the ITA) at the time
that that advance was made,


 


and which is within the
charge to United Kingdom corporation tax as respects any payments of interest
made in respect of that advance; or


 


(II)             a Lender which is:


 


(1)           a company resident in the United Kingdom for United Kingdom tax
purposes;


 


(2)           a
partnership each member of which is:


 


(a)           a company so resident in the United Kingdom; or


 


(b)                                 a company not so resident in the United Kingdom which
carries on a trade in the United Kingdom through a permanent establishment and
which brings into account in computing its chargeable profits (within the
meaning of Section 19 of the CTA) the whole of any share of interest
payable in respect of that advance that falls to it by reason of Part 17
of the CTA;


 


(3)           a company not so resident in the United Kingdom which carries on a trade
in the United Kingdom through a permanent establishment and which brings into
account interest payable in


 


37
















 


respect of that advance in
computing the chargeable profits (within the meaning of Section 19 of the
CTA) of that company; or


 


(III)                                    a
Treaty Lender; or


 


(B)                             a building society
(as defined for the purpose of section 880 of the ITA);


 


(ii)                                   with respect to a
French Borrower (including, for the avoidance of doubt, any payment by the
Company as guarantor on behalf of such Borrower), a Lender which is:


 


(A)                           lending through a
Facility Office in France; or


 


(B)                             a Treaty Lender; or


 


(C)                             otherwise entitled
under French tax law to receive interest payments from such Borrower without
such Borrower being required to make any deduction or withholding for or on
account of tax from a payment made under a Finance Document;


 


(iii)                                with respect to a
German Borrower (including, for the avoidance of doubt, any payment by the
Company as guarantor on behalf of such Borrower), a Lender which is


 


(A)                           lending through a
Facility Office in Germany; or


 


(B)                             a Treaty Lender; or


 


(C)                             otherwise entitled
under German tax law to receive interest payments from such Borrower without
such Borrower being required to make any deduction or withholding for or on
account of tax from a payment made under a Finance Document.


 


“Tax Confirmation” means a confirmation by a Lender that the
person beneficially entitled to interest payable to that Lender in respect of
an advance under a Finance Document is either:


 


(i)                                      a company resident
in the United Kingdom for United Kingdom tax purposes; or


 


(ii)                                   a partnership each
member of which is:


 


(A)                           a company so resident
in the United Kingdom; or


 


(B)                             a company not so
resident in the United Kingdom which carries on a trade in the United Kingdom
through a permanent establishment and which brings into account in computing
its chargeable profits (within the meaning of Section 19 of the CTA) the
whole of any share of interest payable in respect of that advance that falls to
it by reason of Part 17 of the CTA; or


 


(iii)                                a company not so
resident in the United Kingdom which carries on a trade in the United Kingdom
through a permanent establishment and which brings into account interest
payable in respect of that advance in computing the chargeable profits (within
the meaning of Section 19 of the CTA) of that company.


 


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


 


38

















 


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


 


“Tax Payment”
means either the increase in a payment made by an Obligor to a Finance Party
under Clause 13.2 (Tax gross up)
or a payment under Clause 13.3 (Tax
indemnity).


 


“Treaty
Lender” means, in relation to a Borrower (including, for the
avoidance of doubt, the Company as guarantor making a payment on behalf of such
Borrower), a Lender which fulfils all conditions which must be fulfilled under
the provisions of a double taxation treaty with the relevant Borrower’s
jurisdiction of incorporation to obtain full exemption from taxation on
interest imposed by that Borrower’s jurisdiction of incorporation (subject to
completion of any necessary procedural formalities).


 


“UK Non-Bank
Lender” means a Lender which gives a Tax Confirmation in the
Assignment Agreement, Transfer Certificate or Increase Confirmation which it
executes on becoming a Party.


 


“UK Source
Obligor” means an Obligor which is incorporated or resident for Tax
purposes in any part of the United Kingdom or which would otherwise be required
to make a Tax Deduction in respect of Tax imposed by the United Kingdom unless
exemption from that requirement was available.


 


(b)                           Unless a contrary indication appears, in this Clause 13 a reference to
“determines” or “determined” means a determination made in good faith in the
absolute discretion of the person making the determination.


 


13.2                     Tax
gross up


 


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


 


(b)                           The Company shall promptly upon becoming aware that an Obligor must make
a Tax Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Agent accordingly. 
Similarly, a Lender shall notify the Agent on becoming so aware in
respect of a payment payable to that Lender. 
If the Agent receives such notification from a Lender it shall notify
the Company and that Obligor.


 


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


 


(d)                           A payment by an English Borrower or by the Company as guarantor on
behalf of an English Borrower shall not be increased under paragraph (c) above
by reason of a Tax Deduction on account of Tax imposed by the United Kingdom,
if on the date on which the payment falls due:


 


(i)                                      the payment could have been made to the relevant Lender without a Tax
Deduction if the Lender had been a Qualifying Lender, but on that date that
Lender is not or has ceased to be a Qualifying Lender other than as a result of
any change after the date it became a Lender under this Agreement in (or in the
interpretation, administration or application of) any law or double taxation
treaty, or any published practice or published concession of any relevant
taxing authority; or


 


39

















 


(ii)                                   the relevant Lender is a Qualifying Lender solely by virtue of
sub-paragraph (i)(A)(II) of the definition of Qualifying Lender and:


 


(A)                           an officer of HM Revenue & Customs has given (and not revoked)
a direction (a “Direction”) under
section 931 of the ITA which relates to the payment and that Lender has
received from the Obligor making the payment or from the Company a certified
copy of that Direction; and


 


(B)                             the payment could have been made to the Lender without any Tax Deduction
if that Direction had not been made; or


 


(iii)                                the relevant Lender is a Qualifying Lender solely by virtue of
sub-paragraph (i)(A)(II) of the definition of Qualifying Lender and:


 


(A)                           the relevant Lender has not given a Tax Confirmation to the Company; and


 


(B)                             the payment could have been made to the Lender without any Tax Deduction
if the Lender had given a Tax Confirmation to the Company, on the basis that
the Tax Confirmation would have enabled the Company to have formed a reasonable
belief that the payment was an “excepted payment” for the purpose of section
930 of the ITA; or


 


(iv)                               the relevant Lender is a Treaty Lender and the Obligor making the
payment is able to demonstrate that (subject to the completion of any necessary
procedural formalities by the Obligor) the payment could have been made to the
Lender without the Tax Deduction had that Lender complied with its obligations
under paragraph (j) below.


 


(e)                            A payment by:


 


(i)                                      a French Borrower or by the Company as guarantor on behalf of a French
Borrower; or


 


(ii)                                   a German Borrower or by the Company as guarantor on behalf of a German
Borrower,


 


shall not be
increased under paragraph (c) above by reason of a Tax Deduction on
account of Tax imposed by France (in the case of (i) above) or Germany (in
the case of (ii) above) , if on the date on which the payment falls due
the payment could have been made to the relevant Lender without a Tax Deduction
if the Lender had been a Qualifying Lender, but on that date that Lender is not
or has ceased to be a Qualifying Lender other than as a result of any change
after the date it became a Lender under this Agreement in (or in the interpretation,
administration or application of) any law or double taxation treaty, or any
published practice or published concession of any relevant taxing authority.


 


(f)                              A payment by a Luxembourg Borrower or by the Company as guarantor on
behalf of a Luxembourg Borrower, shall not be increased under paragraph (c) above
by reason of a Tax Deduction on account of Tax imposed by the Grand Duchy of
Luxembourg, if the Tax Deduction is required in respect of the European Union
Council Directive 2003/48/EC of 3 June 2003 on the taxation of savings
income in the form of interest payments (or any amendment thereof) as
transposed into Luxembourg law by the Luxembourg laws of 21 June 2005 and
implementing the agreements entered into between Luxembourg and certain dependent
and associated territories of the European Union regarding measures similar to
the ones included in the above Council Directive, or in respect of the 


 


40

















 


Luxembourg
law of 23 December 2005, as amended, relating to interest payments made to
Luxembourg resident individuals.


 


(g)                           No French Borrower, German Borrower or Dutch Borrower is required to
make an increased payment to a Lender under paragraph (c) above for a Tax
Deduction in respect of tax imposed by France, Germany or the Netherlands
respectively from a payment of interest on a Loan, if on the date on which the
payment falls due the relevant Lender in relation to the relevant Borrower is a
Treaty Lender and the Borrower making the payment is able to demonstrate that
(subject to the completion of any necessary procedural formalities by the
Borrower) the payment could have been made to the Lender without the Tax
Deduction had that Lender complied with its obligations under paragraph (j) below.


 


(h)                           If an Obligor is required to make a Tax Deduction, that Obligor shall
make that Tax Deduction and any payment required in connection with that Tax
Deduction within the time allowed and in the minimum amount required by law.


 


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


 


(j)


 


(i)                                      Subject to paragraph (ii) below, a Treaty Lender and each Obligor
which makes a payment to which that Treaty Lender is entitled shall co-operate
in promptly completing any procedural formalities necessary for that Obligor to
obtain authorisation to make that payment without a Tax Deduction.


 


(ii)                                   With respect to a payment by a UK Source Obligor, nothing in paragraph
(i) above shall require a Treaty Lender to:


 


(A)                           register under the HMRC DT Treaty Passport scheme;


 


(B)                             apply the HMRC DT Treaty Passport scheme to any Loan or Utilisation if
it has so registered; or


 


(C)                             file forms in relation to a double taxation treaty if it has:


 


(i)                                  included an indication to the effect that it wishes the HMRC DT Treaty
Passport scheme to apply to this Agreement in accordance with paragraph (m) below
or paragraph (a) of Clause 13.7 (HMRC DT Treaty Passport
scheme confirmation); or


 


(ii)                               notified the Company of its scheme reference number and its jurisdiction
of tax residence pursuant to paragraph (o) below,


 


and the Obligor making that payment has not
complied with its obligations under paragraph (n) below, paragraph (b) of
Clause 13.7 (HMRC DT Treaty Passport scheme confirmation)
or paragraph (p) below.


 


41

















 


(k)                            A UK Non-Bank Lender which becomes a Party on the day on which this
Agreement is entered into gives a Tax Confirmation to the Company by entering
into this Agreement.


 


(l)                               A UK Non-Bank Lender shall promptly notify the Company and the Agent if
there is any change in the position from that set out in the Tax Confirmation.


 


(m)                         A
Treaty Lender which becomes a Party on the day on which this Agreement is
entered into that (i) holds a passport under the HMRC DT Treaty Passport
scheme, and (ii) which then wishes that scheme to apply to this Agreement,
shall include an indication to that effect (for the benefit of the Agent and
without liability to any Obligor) by including its scheme reference number
opposite its name in Part II of Schedule 1 (The Original Parties).


 


(n)                           Where a Lender includes the indication described in paragraph (m) above
in Part II of Schedule 1 (The Original Parties):


 


(i)                                      each Original Borrower which is a UK Source Obligor shall file a duly
completed form DTTP-2 in respect of such Lender with HM Revenue &
Customs within 30 days of the date of this Agreement and shall promptly provide
the Lender with a copy of that filing; and


 


(ii)                                   each Additional Borrower which is a UK Source Obligor shall file a duly
completed form DTTP-2 in respect of such Lender with HM Revenue &
Customs within 30 days of becoming an Additional Borrower and shall promptly
provide the Lender with a copy of that filing.


 


(o)                           Where permitted and effective in accordance with the HMRC DT Treaty
Passport Scheme, a Treaty Lender which has not included the indication
described in paragraph (m) above or the indication described in paragraph
(a) of Clause 13.7 (HMRC DT Treaty
Passport scheme confirmation) but which holds a passport under the
HMRC DT Treaty Passport scheme and subsequently wishes that scheme to apply to
this Agreement shall notify the Company (without liability to any Obligor) of
its scheme reference number and its jurisdiction of tax residence, provided
that such notice must be effective in accordance with Clause 31 (Notices) at least 10 Business Days prior to any applicable
deadline for submission of form DTTP-2.


 


(p)                           Where a Lender notifies the Company of its scheme reference number and
its jurisdiction of tax residence pursuant to paragraph (o) above:


 


(i)                                      each Borrower which is a UK Source Obligor which is a Party as a
Borrower as at the date on which that notice becomes effective in accordance
with Clause 31 (Notices) shall
file a duly completed form DTTP-2 in respect of such Lender with HM Revenue &
Customs within 10 Business Days of that date or, if earlier, prior to any
applicable deadline for submission of form DTTP-2 and shall promptly provide
the Lender with a copy of that filing; and


 


(ii)                                   each Additional Borrower which is a UK Source Obligor which becomes an
Additional Borrower after the date on which that notice becomes effective in
accordance with Clause 31 (Notices)
shall file a duly completed form DTTP-2 in respect of such Lender with HM
Revenue & Customs within 30 days of becoming an Additional Borrower
and shall promptly provide the Lender with a copy of that filing.


 


42

















 


(q)                           If a Lender has not either:


 


(i)                                      included an indication to the effect that it wishes the HMRC DT Treaty
Passport scheme to apply to this Agreement in accordance with paragraph (m) above
or paragraph (a) of Clause 13.7 (HMRC
DT Treaty Passport scheme confirmation); or


 


(ii)                                   notified the Company of its scheme reference number and its jurisdiction
of tax residence pursuant to paragraph (o) above,


 


no Obligor shall file any form relating to the
HMRC DT Treaty Passport scheme in respect of that Lender’s Commitment(s) or
its participation in any Loan or Utilisation.


 


13.3                     Tax
indemnity


 


(a)                            The Company shall (within three Business Days of demand by the Agent)
pay to a Protected Party an amount equal to the loss, liability or cost which
that Protected Party determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Protected Party in respect of a
Finance Document.


 


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


 


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


 


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


 


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


 


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


 


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


 


(A)                           is compensated for by an increased payment under Clause 13.2 (Tax gross up); or


 


(B)                             would have been compensated for by an increased payment under Clause
13.2 (Tax gross up) but was not
so compensated solely because one of the exclusions in paragraphs (d), (e), (f) or
(g) of Clause 13.2 (Tax gross up)
applied.


 


(c)                            A Protected Party making, or intending to make, a claim under paragraph
(a) above shall promptly notify the Agent of the event which will give, or
has given, rise to the claim, following which the Agent shall notify the
Company.


 


(d)                           A Protected Party shall, on receiving a payment from an Obligor under
this Clause 13.3, notify the Agent.


 


13.4                     Tax
Credit


 


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


 


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


 


43

















 


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


 


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


 


13.5                     Stamp
taxes


 


The Company shall pay and, within three
Business Days of demand, indemnify each Finance Party against any cost, loss or
liability that Finance Party incurs in relation to all stamp duty, stamp duty
land tax, registration, notarial and other similar Taxes payable in respect of
any Finance Document except for any Luxembourg registration duties (droit d’enregistrement) payable due to a
registration of any Finance Document when such registration is or was not
required to maintain or preserve the rights of any Finance Party under the
Finance Documents.


 


13.6                     Lender
Status Confirmation


 


With respect to each English Borrower, French
Borrower or German Borrower, each Lender which becomes a Party to this
Agreement after the date of this Agreement shall indicate, in the Transfer
Certificate, Assignment Agreement or Increase Confirmation which it executes on
becoming a Party, and for the benefit of the Agent and without liability to any
Obligor, which of the following categories it falls in:


 


(a)                            not a Qualifying Lender;


 


(b)                           a Qualifying Lender (other than a Treaty Lender); or


 


(c)                            a Treaty Lender.


 


If a New Lender fails to indicate its status in
accordance with this Clause 13.6 in relation to a Borrower, then such New
Lender shall be treated for the purposes of this Agreement (including by each
Obligor) as if it is not a Qualifying Lender with respect to such Borrower
until such time as it notifies the Agent which category applies (and the Agent,
upon receipt of such notification, shall inform the Company). For the avoidance
of doubt, a Transfer Certificate, Assignment Agreement or Increase Confirmation
shall not be invalidated by any failure of a Lender to comply with this Clause
13.6.


 


13.7                     HMRC
DT Treaty Passport scheme confirmation


 


(a)                            A New Lender or an Increase Lender that is a Treaty Lender that (i) holds
a passport under the HMRC DT Treaty Passport scheme, and (ii) which then
wishes that scheme to apply to this Agreement, shall include an indication to
that effect (for the benefit of the Agent and without liability to any Obligor)
in the Transfer Certificate, Assignment Agreement or Increase Confirmation
which it executes by including its scheme reference number in that Transfer
Certificate, Assignment Agreement or Increase Confirmation.


 


(b)                           Where a New Lender or an Increase Lender includes the indication
described in paragraph (a) above in the relevant Transfer Certificate,
Assignment Agreement or Increase Confirmation:


 


(i)                                      each Borrower which is a Party as a Borrower as at the relevant Transfer
Date shall file a duly completed form DTTP-2 in respect of such Lender with HM
Revenue & Customs within 30 days of that Transfer Date and shall
promptly provide the Lender with a copy of that filing; and


 


44

















 


(ii)                                   each Additional Borrower which becomes an Additional Borrower after the
relevant Transfer Date shall file a duly completed form DTTP-2 in respect of
such Lender with HM Revenue & Customs within 30 days of becoming an
Additional Borrower and shall promptly provide the Lender with a copy of that
filing.


 


13.8                     VAT


 


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


 


(b)                           If VAT is or becomes chargeable on any supply made by any Finance Party
(the “Supplier”) to any other
Finance Party (the “Recipient”)
under a Finance Document, and any Party other than the Recipient (the “Subject Party”) is required by the terms of
any Finance Document to pay an amount equal to the consideration for such
supply to the Supplier (rather than being required to reimburse the Recipient
in respect of that consideration), such Party shall also pay to the Supplier
or, if the Recipient has to account to the relevant tax authority for such VAT
under the reverse charge procedure, to the Recipient (in addition to and at the
same time as paying such amount) an amount equal to the amount of such VAT. The
Recipient will promptly pay to the Subject Party an amount equal to any credit
or repayment obtained by the Recipient from the relevant tax authority which
the Recipient reasonably determines is in respect of such VAT.


 


(c)                            Where a Finance Document requires any Party to reimburse or indemnify a
Finance Party for any cost or expense, that Party shall reimburse or indemnify
(as the case may be) such Finance Party for the full amount of such cost or
expense, including such part thereof as represents VAT, save to the extent that
such Finance Party reasonably determines that it is entitled to credit or
repayment in respect of such VAT from the relevant tax authority.


 


(d)                           Any reference in this Clause 13.8 to any Party shall, at any time when
such Party is treated as a member of a group for VAT purposes, include (where
appropriate and unless the context otherwise requires) a reference to the
representative member of such group at such time (the term “representative
member” to:


 


(i)                                      have the same meaning as in the Value Added Tax Act 1994 with regard to
England and Wales; or


 


(ii)                                   (where applicable) with regard to another jurisdiction and in relation
to VAT or any other tax of a similar nature, refer to an equivalent entity
under the relevant laws of such jurisdiction to that referred to in paragraph
(i) above).


 


45

















 


14.                           INCREASED
COSTS


 


14.1                     Increased
costs


 


(a)                            Subject to Clause 14.3 (Exceptions)
the Company shall, within three Business Days of a demand by the Agent, pay for
the account of a Finance Party the amount of any Increased Costs incurred by
that Finance Party or any of its Affiliates as a result of (i) the
introduction of or any change in (or in the interpretation, administration or application
of) any law or regulation or (ii) compliance with any law or regulation
made after the date of this Agreement.


 


(b)                           In this Agreement “Increased Costs”
means:


 


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


 


(ii)                                   an additional or increased cost; or


 


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


 


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


 


14.2                     Increased
cost claims


 


(a)                            A Finance Party intending to make a claim pursuant to Clause 14.1 (Increased costs) shall notify the Agent of
the event giving rise to the claim, following which the Agent shall promptly
notify the Company.


 


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


 


14.3                     Exceptions


 


(a)                            Clause 14.1 (Increased costs)
does not apply to the extent any Increased Cost is:


 


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


 


(ii)                                   compensated for by Clause 13.3 (Tax
indemnity) (or would have been compensated for under Clause 13.3 (Tax indemnity) but was not so compensated
solely because any of the exclusions in paragraph (b) of Clause 13.3 (Tax indemnity) applied);


 


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


 


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


 


(v)                                  attributable to any day more than six months before the first date on
which an officer of the relevant Finance Party, which officer is involved in
the financing extended pursuant to this Agreement, becomes aware of the
relevant Increased Cost.


 


(b)                           In this Clause 14.3, a reference to a “Tax Deduction” has the same
meaning given to the term in Clause 13.1 (Definitions).


 


46

















 


15.                           OTHER
INDEMNITIES


 


15.1                     Currency
indemnity


 


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


 


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


 


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


 


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


 


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


 


15.2                     Other
indemnities


 


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


 


(a)                                   the occurrence of any Event of Default;


 


(b)                                  a failure by an Obligor to pay any amount due under a
Finance Document on its due date, including without limitation, any cost, loss
or liability arising as a result of Clause 28 (Sharing
among the Finance Parties);


 


(c)                                   funding, or making arrangements to fund, its
participation in a Loan requested by a Borrower in a Utilisation Request but
not made by reason of the operation of any one or more of the provisions of
this Agreement (other than by reason of default or negligence by that Finance
Party alone); or


 


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


 


15.3                     Indemnity
to the Agent


 


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


 


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


 


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


 


47






 












 


16.         MITIGATION
BY THE LENDERS


 


16.1       Mitigation


 


(a)         Each
Finance Party shall, in consultation with the Company, take all reasonable
steps to mitigate any circumstances which arise and which would result in any
amount becoming payable under or pursuant to, or cancelled pursuant to, any of
Clause 8.1 (Illegality), Clause
13 (Tax gross-up and indemnities)
or Clause 14 (Increased costs)
and paragraph 3 of Schedule 4 (Mandatory
Cost Formulae) including (but not limited to) transferring its
rights and obligations under the Finance Documents to another Affiliate or
Facility Office.


 


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


 


16.2       Limitation
of liability


 


(a)         The
Company shall promptly indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under Clause 16.1 (Mitigation).


 


(b)         A
Finance Party is not obliged to take any steps under Clause 16.1 (Mitigation) if, in the opinion of that
Finance Party (acting reasonably), to do so might be prejudicial to it.


 


17.         COSTS AND
EXPENSES


 


17.1       Transaction
expenses


 


The Company shall within three Business Days of
demand and delivery of invoices pay the Agent and the Arranger the amount of all
costs and expenses (including legal fees) reasonably incurred by any of them in
connection with the negotiation, preparation, printing, execution and
syndication of:


 


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


 


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


 


17.2       Amendment
costs


 


If (a) an Obligor requests an amendment,
waiver or consent or (b) an amendment is required pursuant to Clause 29.10
(Change of currency), the Company
shall, within three Business Days of demand, reimburse the Agent for the amount
of all costs and expenses (including legal fees) reasonably incurred by the
Agent in responding to, evaluating, negotiating or complying with that request
or requirement.


 


17.3       Enforcement
costs


 


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


 


48

















 


SECTION 7


 


GUARANTEE


 


18.         GUARANTEE
AND INDEMNITY


 


18.1       Guarantee
and indemnity


 


The Company irrevocably and unconditionally:


 


(a)            guarantees,
as primary obligor and not merely as surety, to each Finance Party punctual
performance by each Borrower of all that Borrower’s obligations under the
Finance Documents;


 


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


 


(c)            agrees
with each Finance Party that if any obligation guaranteed by it is or becomes
unenforceable, invalid or illegal, it will, as an independent and primary
obligation, indemnify that Finance Party immediately on demand against any
cost, loss or liability it incurs as a result of a Borrower not paying any
amount which would, but for such unenforceability, invalidity or illegality,
have been payable by it under any Finance Document on the date when it would
have been due. The amount payable by the Company under this indemnity will not
exceed the amount it would have had to pay under this Clause 18 if the amount
claimed had been recoverable on the basis of a guarantee.


 


18.2       Continuing
guarantee


 


This guarantee is a continuing guarantee and
will extend to the ultimate balance of sums payable by any Obligor under the
Finance Documents, regardless of any intermediate payment or discharge in whole
or in part or any increase of the Commitments, and this guarantee constitutes a
guarantee of payment and not of collection.


 


18.3       Reinstatement


 


If any discharge, release or arrangement
(whether in respect of the obligations of any Obligor or any security for those
obligations or otherwise) is made by a Finance Party in whole or in part on the
basis of any payment, security or other disposition which is avoided or must be
restored in insolvency, liquidation, administration or otherwise, without
limitation, then the liability of the Company under this Clause 18 will
continue or be reinstated as if the discharge, release or arrangement had not
occurred.


 


18.4       Waiver of
defences


 


The obligations of the Company under this
Clause 18 will not be affected by an act, omission, matter or thing which, but
for this Clause, would reduce, release or prejudice any of its obligations
under this Clause 18 (without limitation and whether or not known to it or any
Finance Party) including:


 


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


 


49

















 


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


 


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


 


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


 


(e)            any
amendment, waiver, modification, novation, supplement, extension, restatement
(however fundamental and whether or not more onerous) or replacement of any
Finance Document or any other document or security including without limitation
any change in the purpose of, any extension of or any increase in any facility
or the addition of any new facility under any Finance Document or other
document or security;


 


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


 


(g)           any
insolvency or similar proceedings.


 


18.5       Immediate
recourse


 


The Company waives any right it may have of
first requiring any Finance Party (or any trustee or agent on its behalf) to
proceed against or enforce any other rights or security or claim payment from
any person before claiming from the Company under this Clause 18.  This waiver applies irrespective of any law or
any provision of a Finance Document to the contrary.


 


18.6       Appropriations


 


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


 


(a)            refrain
from applying or enforcing any other moneys, security or rights held or
received by that Finance Party (or any trustee or agent on its behalf) in
respect of those amounts, or apply and enforce the same in such manner and
order as it sees fit (whether against those amounts or otherwise) and the
Company shall not be entitled to the benefit of the same; and


 


(b)           hold
in an interest-bearing suspense account any moneys received from the Company or
on account of the Company’s liability under this Clause 18.


 


18.7       Deferral
of Company’s rights


 


Until all amounts which may be or become
payable by the Obligors under or in connection with the Finance Documents have
been irrevocably paid in full and unless the Agent otherwise directs, the
Company will not exercise any rights which it may have by reason of performance
by it of its obligations under the Finance Documents or by reason of any amount
being payable, or liability arising, under this Clause 18:


 


50

















 


(a)            to
be indemnified by an Obligor;


 


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


 


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


 


(d)           to
bring legal or other proceedings for an order requiring any Obligor to make any
payment, or perform any obligation, in respect of which the Company has given a
guarantee, undertaking or indemnity under Clause 18.1 (Guarantee
and indemnity);


 


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


 


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


 


If the Company receives any benefit, payment or
distribution in relation to such rights it shall hold that benefit, payment or
distribution to the extent necessary to enable all amounts which may be or
become payable to the Finance Parties by the Obligors under or in connection
with the Finance Documents to be repaid in full on trust for the Finance
Parties and shall promptly pay or transfer the same to the Agent or as the
Agent may direct for application in accordance with Clause 29 (Payment mechanics).


 


18.8       Additional
security


 


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


 


18.9       Dollar conversion


 


Any amount payable in the Base Currency by the
Company pursuant to the Finance Documents shall be paid, at the written request
of any Finance Party in relation to any amounts payable to such Finance Party
only, in dollars either:


 


(i)             in
New York; or


 


(ii)            in
such other jurisdiction as such Finance Party may elect.


 


51

















 


SECTION 8


 


REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT


 


19.         REPRESENTATIONS


 


The Company (in relation to itself and each other
Obligor as applicable) makes the representations and warranties set out in this
Clause 19 to each Finance Party on the date of this Agreement.


 


19.1       Status


 


(a)         It
is a US corporation, duly incorporated and in good standing under the law of
its jurisdiction of its place of incorporation and each other member of the
Group is duly incorporated (or in the case of any other member of the Group in
the US that is not a corporation, duly organised) and validly existing under
the law of its jurisdiction of the place of its incorporation or organisation
(as applicable).


 


(b)         It
and each of its Subsidiaries possesses the capacity to sue and be sued in its
own name and has the power to own its assets and carry on its business as it is
being conducted except, in the case of a member of the Group 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.


 


19.2       Binding
obligations


 


Subject to the Reservations, the obligations of
each Obligor expressed to be assumed by it in each Finance Document are legal,
valid, binding and enforceable obligations.


 


19.3       Non-conflict
with other obligations


 


The entry into and performance by each Obligor
of, and the transactions contemplated by, the Finance Documents do not and will
not conflict with:


 


(a)            any law or regulation applicable to it (including
Regulations U and X);


 


(b)           its constitutional documents; or


 


(c)            any agreement or instrument binding upon it or any of
its assets (in a manner which has or could reasonably be expected to have a
Material Adverse Effect).


 


19.4       Power and
authority


 


Each Obligor has the power to enter into,
perform and deliver, and has taken all necessary action to authorise its entry
into, performance and delivery of, the Finance Documents to which it is a party
and the transactions contemplated by those Finance Documents.


 


19.5       Validity
and admissibility in evidence


 


All Authorisations required:


 


(a)            for the conduct of the business, trade and ordinary
activities of it and each of its Subsidiaries 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);


 


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


 


52

















 


(c)            to make the Finance Documents to which each Obligor is
a party, subject to the Reservations, admissible in evidence in its
jurisdiction of incorporation,


 


have been obtained or effected and are in full
force and effect.


 


19.6       No
default


 


No Event of Default is continuing or might
reasonably be expected to result from the making of any Utilisation.


 


19.7       No breach


 


It and each of its Subsidiaries is not 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.


 


19.8       No
misleading information


 


(a)         Any
written factual information provided by or on behalf of any member of the Group
to any Finance Party (including for the purposes of the Information Package)
for the purposes of the Facility was true and accurate in all material respects
as at the date it was provided or as at the date (if any) at which it is
stated.


 


(b)         Any
financial projections contained in the Information Package have been prepared
on the basis of recent historical information and on the basis of assumptions
which were reasonable in light of the facts and circumstances then existing.


 


(c)         To
the best of its knowledge and belief, nothing has occurred or been omitted from
the Information Package and no information has been given or withheld that
results in the information provided to any Finance Party (including the
information contained in the Information Package) being untrue or misleading in
any material respect as at the date thereof.


 


19.9       Financial
statements


 


(a)         The
Original Financial Statements were prepared in accordance with GAAP
consistently applied.


 


(b)         The
Original Financial Statements fairly represent the financial condition and
operations (consolidated in the case of the Company) of the relevant Obligor as
at the end of and for the relevant financial year.


 


(c)         Each
of the latest financial statements delivered under Clause 20.1(a) (Financial statements) is prepared in
accordance with GAAP and fairly represents the financial position of the
relevant company as at the date of such financial statements and the results of
its operations and its cash flows for the annual period ended on such date; and


 


(d)         Each
of the latest unaudited quarterly consolidated statements of income,
stockholders’ equity and cash flows of the Company delivered under Clause 20.1(b) (Financial statements) fairly represents
the consolidated financial condition and operations of the Company 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.


 


53

















 


19.10     Pari
passu ranking


 


The payment obligations of each Obligor under
the Finance Documents rank at least pari passu with all its other unsecured and
unsubordinated Financial Indebtedness, except for any obligations which are
mandatorily preferred by law and not by contract.


 


19.11     No
proceedings pending or threatened


 


No litigation, arbitration, investigation or
administrative proceedings of or before any court, arbitral body or agency have
been started or, to the knowledge of the Company’s officers, have been
threatened against it or any of its Subsidiaries which in each case could reasonably
be expected to have a Material Adverse Effect, except for Disclosed Claims.


 


19.12     Compliance
with laws and regulations


 


It and each of its Subsidiaries has complied in
all material respects with all applicable laws and regulations (including Environmental
Laws) to which it may be subject in each case where failure to do so could
reasonably be expected to have a Material Adverse Effect.


 


19.13     Environmental


 


(a)         It
and each of its Subsidiaries 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.


 


(b)         Every
consent, authorisation, licence or approval required under or pursuant to any
Environmental Law by it and each of its Subsidiaries 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 reasonably be expected to have a
Material Adverse Effect, has been obtained and is in full force and effect.


 


(c)         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.


 


(d)         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 it and each of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect having regard to the
cost to that company of meeting such a claim.


 


19.14     No
Security


 


(a)         No
Security other than Permitted Security exists over all or any part of the
assets of it or any of its Subsidiaries.


 


(b)         The
execution of the Finance Documents by each Obligor and the exercise of each of
their respective rights and the performance of each of their respective
obligations under the Finance Documents will not result in the creation of, or
any obligation to create, any Security over or in respect of any of their
assets.


 


19.15     No
Material Adverse Change


 


Since 31 December 2009, no event has
occurred which has had, or could be reasonably expected to have, a Material
Adverse Effect.


 


54

















 


19.16     Taxes


 


(a)         It
and each of its Subsidiaries has complied in all material respects with all Tax
laws in all jurisdictions in which it is subject to Tax and has paid all Tax
due and payable by it.


 


(b)         No
claims are being asserted against it or any of its Subsidiaries in respect of
Tax 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 audited consolidated financial statements of
the Company (or latest accounts audited if required by law of the relevant
Obligor) or other information delivered to the Agent under this Agreement.


 


19.17     ERISA


 


(a)


 


(i)             Neither
the Company 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.


 


(ii)            Each
Plan complies with all applicable requirements of law and regulations.


 


(iii)           Neither
the Company 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.


 


(iv)          There
are no pending or, to the knowledge of the Company, threatened claims, actions,
investigations or lawsuits against any Plan, any fiduciary thereof, or the
Company or any member of the Controlled Group with respect to a Plan.


 


(v)           Neither
the Company 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.


 


(vi)          Within
the last five years neither the Company nor any member of the Controlled Group
has engaged in a transaction which resulted in a Single Employer Plan with an
Unfunded Current Liability being transferred out of the Controlled Group.


 


(vii)         No
ERISA Termination Event has occurred or is reasonably expected to occur with
respect to any Plan which is subject to Title IV of ERISA.


 


(viii)        The Company will not,
and will 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.


 


(b)         The representations and warranties contained in Clause
19.17(a) shall only be breached if the circumstances relating to any
actual breach have, or could reasonably be expected to have, a Material Adverse
Effect.


 


55

















 


19.18     Federal
Reserve Regulations


 


No part of the proceeds of any Loan will be
used, directly or indirectly, to purchase or carry any Margin Stock within the
meaning of Regulation U in a manner that would violate Regulation U.


 


19.19     Investment
Company


 


Neither it nor any of its Subsidiaries is, or
after giving effect to any Loan, will be an “investment company” or a company “controlled”
by an “investment company” within the meaning of the US Investment Company Act
of 1940.


 


19.20     Ownership
of Properties


 


(a)         As
at the date of this Agreement, it and its Subsidiaries has a subsisting
leasehold or freehold interest in, or good and marketable title to, free of all
Security, other than any Permitted Security, all of the properties and assets
reflected in the Original Financial Statements as being owned by it, except for
assets sold, transferred or otherwise disposed of in the ordinary course of
business since the date thereof;


 


(b)         It
and its Subsidiaries 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.


 


19.21     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.


 


19.22     Insurance
Licences


 


No material licence, permit or authorisation of
any of it or its Subsidiaries 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.


 


19.23     Dutch
Borrowers


 


(a)         To
the best of its knowledge, each Dutch Borrower complies with the Dutch
Financial Supervision Act and, to the extent applicable, any regulations
promulgated thereunder.


 


(b)         Each
Dutch Borrower has verified that each Original Lender qualifies as a
Professional Market Party and that it will have verified that each New Lender
qualifies as a Professional Market Party.


 


(c)         Each
Dutch Borrower has given any works council (ondernemingsraad)
that under the Works Council Act (Wet op de
ondernemingsraden) has the right to give advice in
relation to the entry into and performance of this Agreement, the opportunity
to give such advice and has obtained unconditional positive advice from such
works council.


 


19.24     Anti-Terrorism
Law


 


Neither the Company, nor to the knowledge of
the Company, any of its Affiliates, or its respective brokers or other agents
acting or benefiting in any capacity in connection with the Commitment 


 


56

















 


(i) is in violation of any Anti-Terrorism
Law; (ii) is a Designated Person; (iii) conducts any business with or
engage in making or receiving any contribution of funds, goods or services to
or for the benefit of any Designated Person; or (iv) deals in any property
or interest in property blocked pursuant to any Anti-Terrorism Law (it being
acknowledged that this Clause 19.24 only applies to an Affiliate to the extent
that it can so comply without breaching any law or regulation applicable to
it).


 


19.25     Material
Subsidiaries


 


Each member of the Group which, as at the date
of this Agreement, is a Material Subsidiary is listed in Schedule 12 (Material Subsidiaries).


 


19.26     Governing
law and enforcement


 


(a)         Subject
to the Reservations, the choice of English law as the governing law of the
Finance Documents will be recognised and enforced in its jurisdiction of
incorporation.


 


(b)         Subject
to the Reservations, any judgment obtained in England in relation to a Finance
Document will be recognised and enforced in its jurisdiction of incorporation.


 


19.27     Repetition


 


The Repeating Representations are deemed to be
made by the Company (for itself and each other Obligor as applicable) by
reference (except where the contrary is expressly stated) to the facts and
circumstances then existing on:


 


(a)            the date of each Utilisation Request and the first day
of each Interest Period; and


 


(b)           in the case of an Additional Borrower, the day on
which that Additional Borrower becomes (and on which it is proposed that the
Additional Borrower becomes) an Additional Borrower.


 


20.         INFORMATION
UNDERTAKINGS


 


The undertakings in this Clause 20 remain in
force from the date of this Agreement for so long as any amount is outstanding
under the Finance Documents or any Commitment is in force.


 


20.1       Financial
statements


 


The Company shall supply to the Agent in
sufficient copies for all the Lenders:


 


(a)            as soon as the same become available, (but in any
event, in the case of the Company, within 90 days after the end of each of its
Financial Years and, in the case of each other Obligor, within 120 days after
the end of each of their respective Financial Years)


 


(i)           its
audited consolidated financial statements for that Financial Year;


 


(ii)          the
unaudited financial statements for each of Aon Southern Europe B.V. and Aon
Group International B.V. for that Financial Year; and


 


(iii)         the
financial statements of each other Obligor for that Financial Year audited to
the extent required by the law of the jurisdiction of incorporation of such
Obligor,


 


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



 


57
















 


relevant accounts as
soon as reasonably practicable after receipt of the letter by that Obligor,


 


(b)           as soon as the same become available, (but in any
event within 45 days after the end of each consecutive period of 3 months
ending on a Quarter Date), its unaudited consolidated quarterly statements of
income, stockholders’ equity and cash flows for that financial quarter
certified by the chief financial officer of the Company as fairly presenting
the consolidated financial position of the Company as at, and for the quarterly
period ending on, such Quarter Date, subject to normal year end adjustments and
the absence of footnotes.


 


20.2       Compliance
Certificate


 


(a)         The
Company shall supply to the Agent, with each set of financial statements
delivered pursuant to paragraph (a)(i) and paragraph (b) of Clause
20.1 (Financial statements), a
Compliance Certificate setting out (in reasonable detail) computations as to
compliance with Clause 21 (Financial
covenants) as at the date as at which those financial statements
were drawn up.


 


(b)         Each
Compliance Certificate shall be signed by the chief financial officer,
vice-president or controller of the Company and, if required to be delivered
with the financial statements delivered pursuant to paragraph (a)(i) of
Clause 20.1 (Financial statements),
shall be reported on by the Company’s auditors in the form agreed by the
Company and all the Lenders before the date of this Agreement.


 


20.3       Requirements
as to financial statements


 


(a)         Each
set of financial statements delivered by the Company pursuant to Clause 20.1 (Financial statements) shall be certified
by a director or an officer of the relevant company as fairly representing its
(or, as the case may be, its consolidated) financial condition and operations
as at the end of and for the period in relation to which those financial
statements were drawn up.


 


(b)         The
Company shall procure that each set of financial statements delivered pursuant
to Clause 20.1 (Financial statements)
is prepared using GAAP.


 


20.4       Material
Subsidiaries


 


With each set of financial statements delivered
by the Company under paragraph (a)(i) of Clause 20.1 (Financial
statements) (and within 14 days after any request made by the
Agent), the Company shall supply to the Agent a certificate listing the Material
Subsidiaries as at the end of the relevant Financial Year.


 


20.5       Information:
miscellaneous


 


The Company shall supply to the Agent (in
sufficient copies for all the Lenders, if the Agent so requests):


 


(a)            all documents dispatched by the Company to its
shareholders (or any class of them) or its creditors generally at the same time
as they are dispatched;


 


(b)           promptly upon becoming aware of them, the details of
any litigation, arbitration or administrative proceedings which are current,
threatened or pending against any member of the Group, and which could
reasonably be expected to have a Material 


 


58

















 


Adverse Effect
(including, for the avoidance of doubt, any changes to existing litigation,
arbitration or administrative proceedings); and


 


(c)            promptly, such further information regarding the
financial condition, business and operations of any member of the Group as any
Finance Party (through the Agent) may reasonably request.


 


20.6       Notification


 


The Company shall notify the Agent promptly
upon becoming aware of:


 


(a)            any
change in the Debt Rating Level; and


 


(b)           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.


 


20.7       Plans


 


(a)         The Company shall deliver
to the Agent promptly upon learning thereof, notice that a Plan is in ‘at risk’
status within the meaning of Section 303 of ERISA or Section 430(i)(4) of
the Code, and, within 270 days after the close of each Financial Year, a
statement of the funded target attainment percentage of each Plan, certified as
correct by an actuary enrolled under ERISA.


 


(b)         As
soon as possible and in any event within 10 days after the Company knows that
any ERISA Termination Event has occurred with respect to any Plan, the Company
shall deliver a statement, signed by the chief financial officer of the
Company, describing such ERISA Termination Event and the action which the
Company proposes to take with respect thereto, provided that no such notice shall be required to be given
unless such ERISA Termination Event could reasonably be expected to result in
liabilities of the Company in excess of US$25,000,000.


 


20.8       Securities
and Exchange Commission


 


Promptly after they are filed, the Company
shall deliver to the Agent copies of all registration statements and annual,
quarterly, monthly or other regular reports which any member of the Group files
with the US Securities and Exchange Commission (including (but not limited to) Form 10-K,
10-Q and 8-K statements) other than Form S-8 (or successor forms)
registration statements and other registration statements or reports relating
to employee stock programs.


 


20.9       Notification
of default


 


The Company shall notify the Agent of any
Default (and the steps, if any, being taken to remedy it) promptly upon
becoming aware of its occurrence.


 


20.10     “Know
your customer” checks


 


(a)         If:


 


(i)             the
introduction of or any change in (or in the interpretation, administration or
application of) any law or regulation made after the date of this Agreement;


 


(ii)            any
change in the status of an Obligor after the date of this Agreement; or


 


(iii)           a
proposed assignment or transfer by a Lender of any of its rights and obligations
under this Agreement to a party that is not a Lender prior to such assignment
or transfer,


 


59

















 


obliges the Agent or any Lender (or, in the
case of paragraph (iii) above, any prospective new Lender) to comply with “know
your customer” or similar identification procedures in circumstances where the
necessary information is not already available to it, each Obligor shall
promptly upon the request of the Agent or any Lender supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Agent (for itself or on behalf of any Lender) or any Lender (for itself or,
in the case of the event described in paragraph (iii) above, on behalf of
any prospective new Lender) in order for the Agent, such Lender or, in the case
of the event described in paragraph (iii) above, any prospective new
Lender to carry out and be satisfied it has complied with all necessary “know
your customer” or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance Documents.


 


(b)         Each
Lender shall promptly upon the request of the Agent supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Agent (for itself) in order for the Agent to carry out and be satisfied it
has complied with all necessary “know your customer” or other similar checks
under all applicable laws and regulations pursuant to the transactions
contemplated in the Finance Documents.


 


(c)         The
Company shall, by not less than 10 Business Days’ prior written notice to the
Agent, notify the Agent (which shall promptly notify the Lenders) of its
intention to request that one of its Subsidiaries becomes an Additional
Borrower pursuant to Clause 25 (Changes to
the Obligors).


 


(d)         Following
the giving of any notice pursuant to paragraph (c) above, if the accession
of such Additional Borrower obliges the Agent or any Lender to comply with “know
your customer” or similar identification procedures in circumstances where the
necessary information is not already available to it, the Company shall
promptly upon the request of the Agent or any Lender supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Agent (for itself or on behalf of any Lender) or any Lender (for itself or
on behalf of any prospective new Lender) in order for the Agent or such Lender
or any prospective new Lender to carry out and be satisfied it has complied
with necessary “know your customer” or other similar checks under all
applicable laws and regulations pursuant to the accession of such Subsidiary to
this Agreement as an Additional Borrower.


 


20.11     Use of
websites


 


(a)         The
Company may satisfy its obligation under this Agreement to deliver any
information in relation to those Lenders (the “Website Lenders”) who accept this method of communication by
posting this information onto an electronic website designated by the Company
and the Agent (the “Designated Website”)
if:


 


(i)             the
Agent expressly agrees (after consultation with each of the Lenders) that it
will accept communication of the information by this method;


 


(ii)            both
the Company and the Agent are aware of the address of and any relevant password
specifications for the Designated Website; and


 


(iii)           the
information is in a format previously agreed between the Company and the Agent.


 


If any Lender (a “Paper Form Lender”) does not agree to the delivery of
information electronically then the Agent shall notify the Company accordingly
and the Company shall supply 


 


60

















 


the information to the Agent (in sufficient
copies for each Paper Form Lender) in paper form.  In any event the Company shall supply the
Agent with at least one copy in paper form of any information required to be
provided by it.


 


(b)         The
Agent shall supply each Website Lender with the address of and any relevant
password specifications for the Designated Website following designation of
that website by the Company and the Agent.


 


(c)         The
Company shall promptly upon becoming aware of its occurrence notify the Agent
if:


 


(i)             the
Designated Website cannot be accessed due to technical failure;


 


(ii)            the
password specifications for the Designated Website change;


 


(iii)           any
new information which is required to be provided under this Agreement is posted
onto the Designated Website;


 


(iv)          any
existing information which has been provided under this Agreement and posted
onto the Designated Website is amended; or


 


(v)           the
Company becomes aware that the Designated Website or any information posted
onto the Designated Website is or has been infected by any electronic virus or
similar software.


 


If the Company notifies the Agent under
paragraph (c)(i) or paragraph (c)(v) above, all information to be
provided by the Company under this Agreement after the date of that notice
shall be supplied in paper form unless and until the Agent and each Website
Lender is satisfied that the circumstances giving rise to the notification are
no longer continuing.


 


(d)         Any
Website Lender may request, through the Agent, one paper copy of any
information required to be provided under this Agreement which is posted onto
the Designated Website.  The Company
shall comply with any such request within ten Business Days.


 


21.         FINANCIAL
COVENANTS


 


21.1       Financial
condition


 


The Company shall ensure that:


 


(a)            the ratio of EBITDA to Consolidated Interest Expense
for any Relevant Period will not be less than 4 to 1; and


 


(b)           the ratio of Borrowings on each Quarter Date (being
the end of each Relevant Period) to EBITDA for that Relevant Period will not
exceed 3 to 1 provided that in the event that the Senior Notes are issued prior
to the Term Loan Closing Date and the proceeds thereof are held in escrow
pursuant to arrangements reasonably satisfactory to the administrative agent
under the Term Loan Agreement, the outstanding principal amount of the Senior
Notes for the purpose of determining “Borrowings” at any time prior to the Term
Loan Closing Date shall be deemed to be the excess (if any) of the outstanding
principal amount of the Senior Notes over the escrowed proceeds thereof.


 


61

















 


21.2       Financial
covenant calculations


 


(a)         For
the purposes of Clause 21.1 (Financial
Condition), Borrowings, EBITDA and Consolidated Interest Expense
shall be determined by reference to the appropriate quarterly management
accounts and, once delivered, the audited consolidated financial statements of
the Company, in each case, most recently delivered to the Agent under Clause
20.1(a) and (b) (Financial
statements).


 


(b)         In
the event of any change in GAAP, accounting practices or financial reference
periods, such that GAAP, the accounting practices or financial reference
periods applied in the preparation of any financial statements referred to
in paragraph (a) is not consistent with GAAP, the accounting practices or
financial reference periods applied in the preparation of the Company’s
Original Financial Statements, the Company shall provide to the Agent, if
necessary for the determination of compliance with Clause 21.1 (Financial condition), a statement of
reconciliation conforming such financial statements to the Company’s Original
Financial Statements.


 


21.3       Definitions


 


In this Clause 21:


 


“Borrowings”
means, as at any particular time, the aggregate outstanding principal, capital
or nominal amount (and any fixed or minimum premium payable on prepayment or
redemption) of the Financial Indebtedness of members of the Group (other than
any indebtedness referred to in paragraphs (g) and (i) of the
definition of Financial Indebtedness).


 


For this purpose, any amount outstanding or
repayable in a currency other than dollars shall on that day be taken into
account in its dollar equivalent at the rate of exchange that would have been
used had an audited consolidated balance sheet of the Group been prepared as at
that day in accordance with the GAAP applicable to the Original Financial
Statements of the Company.


 


“Consolidated
Interest Expense” means, in relation to a Relevant Period, the
consolidated net interest expense of the Group (for the avoidance of doubt,
this definition shall be construed so as to be consistent with US GAAP).


 


“Consolidated
Net Income” means, with reference to any period, the net income (or
loss) of the Group calculated on a consolidated basis for such period.


 


“EBITDA” means
Consolidated Net Income plus (a) to
the extent deducted from revenues in determining Consolidated Net Income, (i) Consolidated
Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation,
(iv) amortisation, (v) extraordinary losses incurred other than in
the ordinary course of business, (vi) the Transaction Costs and (vii) non
recurring cash charges incurred for such period in connection with the Merger
in an amount not to exceed US$50,000,000 in aggregate during the term of this
Agreement minus (b) to the
extent included in Consolidated Net Income, extraordinary gains realised other
than in the ordinary course of business, all calculated for the Group on a
consolidated basis.


 


“Relevant
Period” means each period of four consecutive accounting quarters
ending on a Quarter Date.


 


62

















 


22.         GENERAL
UNDERTAKINGS


 


The undertakings in this Clause 22 remain in
force from the date of this Agreement for so long as any amount is outstanding
under the Finance Documents or any Commitment is in force.


 


22.1       Authorisations


 


The Company shall (and shall procure that each
member of the Group shall) promptly obtain, comply with and do all that is
necessary to maintain in full force and effect; and supply certified copies to
the Agent of any Authorisation required under any law or regulation:


 


(a)            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


 


(b)           to
enable it to perform its obligations under the Finance Documents and to ensure
the legality, validity, enforceability or admissibility in evidence in its
jurisdiction of incorporation of any Finance Document.


 


22.2       Compliance
with laws


 


The Company shall (and shall procure that each
member of the Group shall) comply in all respects with all laws to which it may
be subject, if failure so to comply could reasonably be expected to have a
Material Adverse Effect.


 


22.3       Negative
pledge


 


The Company shall not (and shall ensure that no
other member of the Group shall) create or permit to subsist any Security over
any of its assets other than Permitted Security.


 


22.4       Merger


 


The Company will not, nor will it permit any
member of the Group to, enter into any amalgamation, demerger, merger or
reconstruction with or into any other person, except that:


 


(a)            a
wholly-owned Subsidiary may merge into the Company or any wholly-owned
Subsidiary of the Company;


 


(b)           the
Company or any member of the Group may enter into any amalgamation, demerger,
merger or reconstruction with any other person so long as, in the case of such
a transaction to which the Company is a party, the Company is the continuing or
surviving corporation, and, in the case of such a transaction to which any
member of the Group is a party, the surviving corporation is a Subsidiary of
the Company, and in any such case, prior to and after giving effect to such
amalgamation, demerger, merger or reconstruction, no Default or Event of
Default is continuing; and


 


(c)            any
member of the Group may enter into any amalgamation, demerger, merger or
reconstruction as a means of effecting a disposition or acquisition which would
not result in a Default or Event of Default,


 


provided that, in the case of an Obligor, the
Agent (if it so requests) 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.


 


63

















 


22.5       Conduct
of business


 


The Company will, and will cause each
Subsidiary to, (a) carry on and conduct its business in substantially the
same manner and in substantially the same fields of enterprise as it is
conducted on the date of this Agreement taking into account the Merger
Agreement and Merger, and will not, and will not permit any of its Subsidiaries
to, engage in any business other than (i) businesses in the same fields of
enterprise as now conducted by the Company and its Subsidiaries or the Target
and its Subsidiaries or (ii) businesses that are reasonably related or
incidental thereto or that, in the judgment of the board of directors of the
Company, are reasonably expected to materially enhance the other businesses in
which the Company and its Subsidiaries are engaged, and (b) do all things
necessary to remain duly organized, validly existing and in good standing in
its jurisdiction of organization and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted,
except where failure to be in such good standing or so qualified or authorised
could not reasonably be expected to have a Material Adverse Effect, provided,
however, that nothing in this Clause 22.5 shall prohibit the dissolution or
sale, transfer or other disposition of any Subsidiary that is not otherwise
prohibited by this Agreement.


 


22.6       Taxes


 


The Company shall (and shall ensure that each
member of the Group shall) 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, and there shall be set aside adequate
reserves with respect to any such Taxes or charges so contested in accordance
with GAAP.


 


22.7       Insurance


 


The Company shall procure that the Group as a
whole maintains with financially sound and reputable insurance companies,
insurance on its assets and in such amounts and covering such risks as is
consistent with sound business practice.


 


22.8       Maintenance
of assets


 


The Company shall (and shall ensure that each
member of the Group shall) 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.


 


22.9       Access


 


Upon reasonable notice being given to the
Company by the Agent, the Company shall 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 member of the Group and to discuss the affairs, finances and accounts of any
member of the 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.


 


64

















 


22.10     ERISA


 


(a)         The
Company shall 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.


 


(b)         The
Company shall 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.


 


(c)         The
Company shall 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.


 


22.11     Pari
passu


 


The Company shall ensure that its obligations
and those of each of the other Obligors under the Finance Documents shall at
all times rank at least pari passu with
all its other present and future unsecured and unsubordinated Financial
Indebtedness, except for any obligations which are mandatorily preferred by law
and not by contract.


 


22.12     Use of
Proceeds


 


The Company shall not (and shall ensure that no
other member of the Group shall) use any of the proceeds of the Loans to
purchase or carry any Margin Stock.


 


22.13     Dividends


 


The Company shall not, so long as any Event of
Default has occurred and is continuing declare or pay any dividends or other
distribution in relation to its capital stock (other than dividends payable in
its own 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.


 


22.14     Affiliates


 


The Company shall not
(and shall ensure that no other member of the Group shall) 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:


 


(a)            between
the Company and any direct or indirect wholly-owned Subsidiary of the Company
or between wholly-owned Subsidiaries of the Company; or


 


(b)           on
arms’ length terms and in the ordinary course of the day to day business, and
pursuant to the reasonable requirements, of the relevant member of the Group
and in accordance with good business practice.


 


22.15     Change in
Financial Year


 


The Company shall not change its Financial Year
to end on any date other than 31 December of each year.


 


65

















 


22.16     Inconsistent
Agreements


 


(a)         The
Company shall not (and shall ensure that no other member of the Group shall)
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 Finance Documents, the amending of
the Finance Documents or the ability of any Subsidiary of the Company to:


 


(A)         pay
dividends or make other distributions on its issued share capital;


 


(B)          make
loans or advances to the Company; or


 


(C)          repay
loans or advances from the Company


 


except (x) restrictions
and limitations imposed by Law or by the Finance Documents, (y) customary
restrictions and limitations contained in agreements relating to the sale of a
Subsidiary or its assets that is permitted hereunder, (z) restrictions and
conditions imposed by agreements relating to the Financial Indebtedness of any
Subsidiary in existence at the time such Subsidiary becomes a Subsidiary but
not created in contemplation of or in connection with such Subsidiary becoming
a Subsidiary (or any refinancing or amendment thereof that does not result in a
materially more restrictive restriction or condition), provided that such
restrictions and conditions apply only to such Subsidiary and its respective
Subsidiaries, (aa) in the case of any Subsidiary that is not a wholly-owned
Subsidiary, customary restrictions and conditions imposed by its organisational
documents or any joint venture or similar agreement, (bb) solely for the first
60 days following the Term Loan Closing Date, restrictions set forth in any
indenture, agreement, instrument or other arrangement to which the Target or
any of its Subsidiaries is party and (cc) where, in the case of (A), (B) and
(C), any such prohibition, restraint or imposition does not, or could not
reasonably be expected to, have a material adverse effect on the ability of the
Company to comply with its payment obligations under the Finance Documents; or


 


(ii)            contains
any provision which would be violated or breached by the making of Loans or by
the performance by any Obligor of any of its obligations under any Finance
Document.


 


22.17     Disposals


 


The Company will not make any Disposition or
permit any Subsidiary to make any Disposition, except:


 


(a)            Dispositions
of inventory in the ordinary course of business;


 


(b)           Dispositions
of Property to the Company or any Subsidiary of the Company;


 


(c)            Dispositions
by Subsidiaries primarily engaged in insurance underwriting or related
activities from their investment portfolios in the ordinary course of business;


 


(d)           Dispositions
of investments in cash equivalents in the usual course of treasury business;
and


 


66

















 


(e)            any
other Disposition of Property which represents no more than 25 per cent. of the
consolidated gross assets of the Group, as would be shown in the consolidated
financial statements of the Group as at the end of the quarter immediately
preceding the date on which such determination is made, to any other person(s) in
any Financial Year.


 


22.18     Dutch
Borrowers


 


Each Dutch Borrower shall ensure that it
complies with the Dutch Financial Supervision Act and, to the extent
applicable, any regulations promulgated thereunder.


 


22.19     Anti-Terrorism
Law


 


(a)         The
Company will not, nor will it permit any of its Affiliates to, knowingly (i) conduct
any business with or engage in making or receiving any contribution of funds,
goods or services to or for the benefit of any Designated Person; or (ii) deal
in, or otherwise engage in any transaction relating to, any property or interest
in property blocked pursuant to any Anti-Terrorism Law (it being acknowledged
that this sub-paragraph (a) only applies to an Affiliate to the extent
that it can so comply without breaching any law or regulation applicable to
it).


 


(b)         No
Designated Person shall have a controlling interest of any nature whatsoever in
the Company with the result that an investment in the Company (whether direct
or indirect) or the Commitment would be in violation of any Anti-Terrorism Law.


 


22.20     Financial
Indebtedness


 


The Company will not permit any Subsidiary to
create, incur, assume or suffer to exist any Financial Indebtedness, except:


 


(a)            Financial
Indebtedness under the Finance Documents;


 


(b)           Financial
Indebtedness under the US Facility Agreement and any renewal and refinancing
thereof, provided that the committed amount thereof is not increased and no
other Subsidiary (other than a Subsidiary that becomes a borrower thereunder)
becomes obligated in respect thereof;


 


(c)            Financial
Indebtedness owed to the Company or another Subsidiary of the Company;


 


(d)           Financial
Indebtedness under performance bonds, surety bonds or letter of credit
obligations to provide security under worker’s compensation laws, unemployment
insurance, old age pensions, or other social security or retirement benefits,
or similar legislation, and bank overdrafts, in each case, incurred in the
ordinary course of business;


 


(e)            Financial
Indebtedness of any Subsidiary existing as of the date hereof (other than
Financial Indebtedness described in paragraphs (a) or (b) above), and
any renewal and refinancing thereof, provided that the principal amount thereof
is not increased;


 


(f)            Financial
Indebtedness under any Hedging Agreements entered into in the ordinary course
of business and not for speculative purposes; and


 


(g)           other
Financial Indebtedness in an aggregate amount outstanding at any time not to
exceed €2,000,000,000, minus the amount of Financial Indebtedness then
outstanding under this Agreement and any renewal or refinancing thereof.


 


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22.21               Post-closing
Filing


 


(a)                            Without prejudice to its statutory obligations,  AON Finance Luxembourg S.à r.l shall:


 


(i)                                      make a mandatory filing with the Luxembourg Register of Commerce
and Companies with respect to its financial year ended 31 December 2009;
and


 


(ii)                                   file its annual accounts for its financial year ended 31 December 2009
with the Luxembourg Register of Commerce and Companies, including publishing
its annual accounts in the Luxembourg State Gazette (Memorial C),


 


and shall deliver
evidence of the same to the Agent within one Month of the date of this
Agreement.


 


(b)                           No Utilisation Request relating to  AON Finance Luxembourg S.à r.l
as Borrower may be delivered to the Agent unless the Agent has
received evidence of the filings specified in paragraph (a) above in form
and substance satisfactory to it within the timeframe specified in
paragraph (a) above.


 


23.                           EVENTS OF DEFAULT


 


Each of the events or circumstances set out in
this Clause 23 is an Event of Default (save for Clause 23.16 (Acceleration)).


 


23.1                     Non-payment


 


An Obligor does not pay on the due date any
amount payable pursuant to a Finance Document at the place and in the currency
in which it is expressed to be payable unless:


 


(a)                                   its failure to pay is caused by:


 


(i)                                  administrative or technical error; or


 


(ii)                               a Disruption Event; and


 


(b)                                  payment is made within five Business Days of its due date.


 


23.2                     Financial
covenants


 


Any requirement of Clause 21 (Financial covenants) is not satisfied.


 


23.3                     Other
obligations


 


(a)                            An Obligor does not comply with any provision of the Finance Documents
(other than those referred to in Clause 23.1 (Non-payment)
and Clause 23.2 (Financial covenants)).


 


(b)                           No Event of Default under paragraph (a) above will occur if the
failure to comply is capable of remedy and is remedied within 20 days of the
earlier of (A) the Agent giving notice to the Company and (B) the
Company becoming aware of the failure to comply.


 


23.4                     Misrepresentation


 


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


 


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23.5                     Cross
default


 


(a)                            Any Financial Indebtedness of any member of the Group is not paid when
due (taking into account any originally applicable grace period.)


 


(b)                           Any Financial Indebtedness of any member of the Group is declared to be
or otherwise becomes due and payable prior to its specified maturity as a
result of an event of default (however described).


 


(c)                            Any commitment for any Financial Indebtedness of any member of the Group
is cancelled or suspended by a creditor of any member of the Group as a result
of an event of default (however described).


 


(d)                           No Event of Default will occur under this Clause 23.5 if the aggregate
amount of Financial Indebtedness or commitment for Financial Indebtedness
falling within paragraphs (a) to (c) above is less than US
$25,000,000 (or its equivalent in any other currency or currencies).


 


23.6                     Insolvency


 


Any Obligor or any
Material Subsidiary:


 


(a)                                   (other than in the case of a Dutch entity) becomes insolvent, commits an
act of bankruptcy, suspends payment of its debts or is unable or admits its
inability to pay its debts as they fall due or is over-indebted (überschuldet) or in the case of a Dutch
entity, is in a position that it has ceased to pay its debts (verkeert in de toestand dat hij heeft opgehouden te
betalen) within the meaning of Section 1 of the Dutch
Bankruptcy Act (Faillissementswet) or in the case of an
entity incorporated in the Grand Duchy of Luxembourg, it has been declared in
state of bankruptcy (en faillite), it is subject to controlled management (gestion contrôllée), general settlement or
composition with creditors (concordat
préventif de faillite), or any moratorium or reprieve from payment (suspension de paiements).


 


(b)                                  by reason of actual or anticipated financial difficulty commences
negotiations with one or more of its creditors with a view to the readjustment
or rescheduling of any of its Financial Indebtedness;


 


(c)                                   proposes or enters into any composition, general assignment or other
arrangement for the benefit of its creditors generally or any class of
creditors; or


 


(d)                                  any Dutch Borrower or Material Subsidiary incorporated in the
Netherlands gives notice under section 36(2) of the Dutch 1990 Tax
Collection Act (Invorderingswet 1990).


 


23.7                     Insolvency
proceedings


 


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


 


(a)                                   the suspension of payments, a moratorium of any
indebtedness, bankruptcy, winding-up, dissolution, administration,
reorganisation or any other insolvency proceedings (by way of voluntary
arrangement, scheme of arrangement or otherwise) of any Obligor or any Material
Subsidiary other than:


 


69

















 


(i)                                  in relation to a solvent liquidation, reconstruction or reorganisation
of an Obligor or Material Subsidiary, the terms of which have been previously
approved in writing by the Majority Lenders; or


 


(ii)                               any winding up or petition which is frivolous or vexatious and which is,
in any event, discharged within 21 days of its presentation and before it is
advertised.


 


(b)                                  the appointment of a liquidator (other than in respect
of a solvent liquidation of an Obligor or Material Subsidiary, the terms of
which have been previously approved in writing by the Majority Lenders), trustee
in bankruptcy, receiver, administrative receiver, administrator, custodian,
conservator, sequestrator, compulsory manager or other similar officer in
respect of an Obligor or a Material Subsidiary, a Substantial Portion of the
assets of the Group;


 


(c)                                   a petition for insolvency proceedings in respect of
its assets (Antrag auf Eröffnung eines Insolvenzverfahrens)
is filed, threatened to be filed or any event occurs which constitutes a cause
for the initiation of insolvency proceedings (Eröffnungsgrund)
as set out in sections 17 et seg. of the German Insolvency Code (Insolvenzordnung);


 


(d)                                  actions are taken pursuant to section 21 of the German
Insolvency Code by a competent court;


 


(e)                                   a French Obligor proceedings for the appointment of a mandataire ad hoc or for a conciliation in accordance with articles
L. 611-3 to L. 611-15 of the French Code de
commerce or a judgment for sauvegarde,
redressement judiciaire, cession totale de l’entreprise or liquidation judiciaire is entered in
relation to a French Obligor under articles L. 620-1 to L.644-6 of the French Code de commerce,


 


or any analogous procedure or step is taken in
any jurisdiction in respect of an Obligor or any Material Subsidiary.


 


23.8                     Attachment
or Distress


 


A creditor or encumbrancer attaches or takes
possession of, or a distress, execution (including by way of executory
attachment (executoriaal beslag) or interlocutory
attachment (conservatoir beslag), sequestration or
other process is levied or enforced upon or sued out against the assets of the
Company or any member of the Group which assets amount to a Substantial Portion
and such process is not discharged within 28 days except that, in the case of a
Dutch Borrower, no such grace period shall apply in case of an executory
attachment (“executoriaal beslag”).


 


23.9                     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 member of the Group which, when taken together with all other
assets of the Group 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.


 


23.10               Undischarged
Judgment


 


Any Obligor or Material Subsidiary fails within
30 days to pay, bond, or otherwise discharge any judgment or order for the
payment of an amount in excess of US $25,000,000 (or multiple 


 


70

















 


judgments or orders for the payment of an
aggregate amount of US $50,000,000) unless such judgment (or judgments) are
being contested in good faith and no enforcement actions have been commenced in
relation thereto.


 


23.11               Non-issuance
of Audit Report or Qualification of Financial Statements


 


The auditors of the Company do not issue an
audit report or the auditors of the Company issue a qualification in respect of
the audited consolidated financial statements of the Company 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.


 


23.12               Ownership
of the Obligors


 


An Obligor (other than the Company) is not or
ceases to be a wholly-owned Subsidiary of the Company.


 


23.13               Unlawfulness


 


It is or becomes unlawful for an Obligor to
perform any of its obligations under the Finance Documents.


 


23.14               Repudiation


 


An Obligor repudiates a Finance Document or
evidences an intention to repudiate a Finance Document.


 


23.15               ERISA


 


Any of the following events results in the
imposition of or granting of security, or the incurring of a liability or a
material risk of incurring a liability that individually and/or in the
aggregate, has or could reasonably be expected to have a Material Adverse
Effect:


 


(a)                                   any ERISA Termination Event occurs or is reasonably
expected to occur;


 


(b)                                  the Company or any other member of the Controlled
Group incurs or is likely to incur a liability to or on account of a
Multiemployer Plan as a result of a violation of Section 515 of ERISA or
under Section 4201, 4204 or 4212(c) of ERISA, or;


 


(c)                                   the Company or any other member of the Controlled
Group incurs or is likely to incur a liability to or on account of a Plan under
Section 409, 502(i) or 502(I) of ERISA or Section 4971 or
4975 of the Code.


 


23.16               Acceleration


 


On and at any time after the occurrence of an
Event of Default which is continuing the Agent may, and shall if so directed by
the Majority Lenders, by notice to the Company:


 


(a)                                   cancel the Total Commitments whereupon they shall
immediately be cancelled;


 


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


 


(c)                                   declare that all or part of the Loans be payable on
demand, whereupon they shall immediately become payable on demand by the Agent
on the instructions of the Majority Lenders.


 


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23.17               Clean-up
Period


 


Notwithstanding any other provision of this
Agreement, an Event of Default arising under paragraphs (b) or (c) of
Clause 23.5 (Cross default) which
relates to the Target or any of its Subsidiaries shall not entitle a Finance
Party to give notice under Clause 23.16 (Acceleration)
nor operate as a condition to a Utilisation under paragraph (a)(i) of
Clause 4.2 (Further conditions precedent)
during the Clean-up Period provided that such Event of Default could not
reasonably be expected to have a Material Adverse Effect.


 


72

















 


SECTION 9


 


CHANGES TO PARTIES


 


24.                           CHANGES
TO THE LENDERS


 


24.1                     Assignments
and transfers by the Lenders


 


Subject to this Clause 24, a Lender (the “Existing  Lender”)
may:


 


(a)                                   assign any of its rights; or


 


(b)                                  transfer by novation any of its rights and obligations,


 


to another bank or financial institution or to
a trust, fund or other entity which is regularly engaged in or established for
the purpose of making, purchasing or investing in loans, securities or other
financial assets, and is in each case, a Professional Market Party (the “New Lender”).


 


24.2                     Conditions
of assignment or transfer


 


(a)                            The consent of the Company is required for an assignment or transfer by
an Existing Lender, unless the assignment or transfer is to another Lender or
an Affiliate of a Lender or an Event of Default is continuing.


 


(b)                           The consent of the Company to an assignment or transfer must not be
unreasonably withheld or delayed.  The
Company will be deemed to have given its consent five Business Days after the
Existing Lender has requested it unless consent is expressly refused by the
Company within that time.


 


(c)                            The consent of the Company to an assignment or transfer must not be
withheld solely because the assignment or transfer may result in an increase to
the Mandatory Cost.


 


(d)                           An assignment will only be effective on:


 


(i)                                      receipt by the Agent (whether in the Assignment Agreement or otherwise)
of written confirmation from the New Lender (in form and substance satisfactory
to the Agent) that the New Lender will assume the same obligations to the other
Finance Parties as it would have been under if it was an Original Lender; and


 


(ii)                                   performance by the Agent of all “know your customer” or other checks
relating to any person that it is required to carry out in relation to such
assignment to a New Lender, the completion of which the Agent shall promptly
notify to the Existing Lender and the New Lender.


 


(e)                            A transfer will only be effective if the procedure set out in Clause
24.5 (Procedure for transfer) is
complied with and if such transfer is in respect of a Commitment of at least
€5,000,000 or, if less, the whole Commitment of the Existing Lender.


 


(f)                              If:


 


(i)                                      a Lender assigns or transfers any of its rights or obligations under the
Finance Documents or changes its Facility Office; and


 


(ii)                                   as a result of circumstances existing at the date the assignment,
transfer or change occurs, an Obligor would be obliged to make a payment to the
New Lender or Lender 


 


 


73

















 


acting through its new Facility Office under Clause 13 (Tax gross up and indemnities) or Clause 14
(Increased Costs),


 


then the New Lender or Lender acting through
its new Facility Office is only entitled to receive payment under those Clauses
to the same extent as the Existing Lender or Lender acting through its previous
Facility Office would have been if the assignment, transfer or change had not occurred.
This paragraph (f) shall not apply (x) in respect of an assignment or
transfer made in the ordinary course of the primary syndication of the Facility
or (y) in relation to Clause 13.2 (Tax gross-up),
to a payment to a New Lender that is a Treaty Lender that has included an
indication to the effect that it wishes the HMRC DT Treaty Passport scheme to
apply to this Agreement in accordance with paragraph (o) of Clause 13.2 (Tax gross up) or paragraph (a) of
Clause 13.7 (HMRC DT Treaty Passport scheme confirmation)
if the Obligor making the payment has not complied with its obligations under
paragraph (p) of Clause 13.2 (Tax gross
up)  or paragraph (b) of
Clause 13.7 (HMRC DT Treaty Passport scheme confirmation).


 


(g)                           Each New Lender, by executing the relevant Transfer Certificate or
Assignment Agreement, confirms, for the avoidance of doubt, that the Agent has
authority to execute on its behalf any amendment or waiver that has been
approved by or on behalf of the requisite Lender or Lenders in accordance with
this Agreement on or prior to the date on which the transfer or assignment
becomes effective in accordance with this Agreement and that it is bound by
that decision to the same extent as the Existing Lender would have been had it
remained a Lender.


 


(h)                           If any Existing 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 Existing Lender concerned.


 


24.3                     Assignment
or transfer fee


 


The New Lender shall, on the date upon which an
assignment or transfer takes effect, pay to the Agent (for its own account) a
fee of US $2,500.


 


24.4                     Limitation
of responsibility of Existing Lenders


 


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


 


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


 


(ii)                                   the financial condition of any Obligor;


 


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


 


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


 


and any representations or warranties implied
by law are excluded.


 


(b)                           Each New Lender confirms to the Existing Lender and the other Finance Parties
that it:


 


74

















 


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


 


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


 


(c)                            Nothing in any Finance Document obliges an Existing Lender to:


 


(i)                                      accept a re-transfer or re-assignment from a New Lender of any of the
rights and obligations assigned or transferred under this Clause 24; or


 


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


 


24.5                     Procedure
for transfer


 


(a)                            Subject to the conditions set out in Clause 24.2 (Conditions of assignment or transfer) a
transfer is effected in accordance with paragraph (c) below when the Agent
executes an otherwise duly completed Transfer Certificate delivered to it by
the Existing Lender and the New Lender. 
The Agent shall, subject to paragraph (b) below, as soon as
reasonably practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement, execute that
Transfer Certificate.


 


(b)                           The Agent shall only be obliged to execute a Transfer Certificate
delivered to it by the Existing Lender and the New Lender once it is satisfied
it has complied with all necessary “know your customer” or other similar checks
under all applicable laws and regulations in relation to the transfer to such
New Lender.


 


(c)                            Subject to Clause 24.9 (Pro rata
interest settlement), on the Transfer Date:


 


(i)                                      to the extent that in the Transfer Certificate the Existing Lender seeks
to transfer by novation its rights and obligations under the Finance Documents
each of the Obligors and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents and their
respective rights against one another under the Finance Documents shall be
cancelled (being the “Discharged Rights and
Obligations”);


 


(ii)                                   each of the Obligors and the New Lender shall assume obligations towards
one another and/or acquire rights against one another which differ from the
Discharged Rights and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of that Obligor and the
Existing Lender;


 


(iii)                                the Agent, the Arranger, the New Lender and other Lenders shall acquire
the same rights and assume the same obligations between themselves as they
would have acquired and assumed had the New Lender been an Original Lender with
the rights and/or obligations 


 


75

















 


acquired
or assumed by it as a result of the transfer and to that extent the Agent, the
Arranger and the Existing Lender shall each be released from further
obligations to each other under the Finance Documents; and


 


(iv)                               the New Lender shall become a Party as a “Lender”.


 


(d)                           For the avoidance of doubt, the Parties agree that any transfer effected
in accordance with this Clause 24 shall constitute a novation (within the meaning of Articles 1271 et seq. of the
French Code civil), with respect
to any affected French Borrower provided that, notwithstanding any such novation, all the rights (including in
relation to Security) of the Parties against the Obligors shall be maintained
in accordance with Article 1278 et seq. of the French Code civil.


 


24.6                     Procedure
for assignment


 


(a)                            Subject to the conditions set out in Clause 24.2 (Conditions
of assignment or transfer) an assignment may be effected in
accordance with paragraph (c) below when the Agent executes an otherwise
duly completed Assignment Agreement delivered to it by the Existing Lender and
the New Lender. The Agent shall, subject to paragraph (b) below, as soon
as reasonably practicable after receipt by it of a duly completed Assignment
Agreement appearing on its face to comply with the terms of this Agreement and
delivered in accordance with the terms of this Agreement, execute that
Assignment Agreement.


 


(b)                           The Agent shall only be obliged to execute an Assignment Agreement
delivered to it by the Existing Lender and the New Lender once it is satisfied
it has complied with all necessary “know your customer” or other similar checks
under all applicable laws and regulations in relation to the assignment to such
New Lender.


 


(c)                            Subject to Clause 24.9 (Pro rata interest
settlement), on the Transfer Date:


 


(i)                                      the Existing Lender will assign absolutely to the New Lender the rights
under the Finance Documents expressed to be the subject of the assignment in
the Assignment Agreement;


 


(ii)                                   the Existing Lender will be released by each Obligor and the other
Finance Parties from the obligations owed by it (the “Relevant
Obligations”) and expressed to be the subject of the release in the
Assignment Agreement; and


 


(iii)                                the New Lender shall become a Party as a “Lender” and will be bound by
obligations equivalent to the Relevant Obligations.


 


(d)                           Lenders may utilise procedures other than those set out in this Clause
24.6 to assign their rights under the Finance Documents (but not, without the
consent of the relevant Obligor or unless in accordance with Clause 24.5 (Procedure for transfer), to obtain a release by that Obligor
from the obligations owed to that Obligor by the Lenders nor the assumption of
equivalent obligations by a New Lender) provided that
they comply with the conditions set out in Clause 24.2 (Conditions
of assignment or transfer).


 


24.7                     Copy
of Transfer Certificate or Assignment Agreement to Company


 


The Agent shall, as soon as reasonably
practicable after it has executed a Transfer Certificate or an Assignment
Agreement, send to the Company a copy of that Transfer Certificate or
Assignment Agreement.


 


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24.8                     Security
over Lenders’ rights


 


In addition to the other rights provided to
Lenders under this Clause 24, each Lender may without consulting with or
obtaining consent from any Obligor, at any time charge, assign or otherwise
create Security in or over (whether by way of collateral or otherwise) all or
any of its rights under any Finance Document to secure obligations of that
Lender including, without limitation:


 


(a)                                   any charge, assignment or other Security to secure obligations to a
federal reserve or central bank; and


 


(b)                                  in the case of any Lender which is a fund, any charge, assignment or
other Security granted to any holders (or trustee or representatives of
holders) of obligations owed, or securities issued, by that Lender as security
for those obligations or securities,


 


except that no such charge, assignment or Security
shall:


 


(i)                                  release a Lender from any of its obligations under the Finance Documents
or substitute the beneficiary of the relevant charge, assignment or Security
for the Lender as a party to any of the Finance Documents; or


 


(ii)                               require any payments to be made by an Obligor other than or in excess
of, or grant to any person any more extensive rights than, those required to be
made or granted to the relevant Lender under the Finance Documents.


 


24.9                     Pro
rata interest settlement


 


If the Agent has notified the Lenders that it
is able to distribute interest payments on a “pro rata basis” to Existing
Lenders and New Lenders then (in respect of any transfer pursuant to Clause
24.5 (Procedure for transfer) or any
assignment pursuant to Clause 24.6 (Procedure for assignment)
the Transfer Date of which, in each case, is after the date of such
notification and is not on the last day of an Interest Period):


 


(a)                                   any interest or fees in respect of the relevant participation which are
expressed to accrue by reference to the lapse of time shall continue to accrue
in favour of the Existing Lender up to but excluding the Transfer Date (“Accrued Amounts”) and shall become due and payable to the
Existing Lender (without further interest accruing on them) on the last day of
the current Interest Period (or, if the Interest Period is longer than six
Months, on the next of the dates which falls at six Monthly intervals after the
first day of that Interest Period); and


 


(b)                                  the rights assigned or transferred by the Existing Lender will not
include the right to the Accrued Amounts, so that, for the avoidance of doubt:


 


(i)                                  when the Accrued Amounts become payable, those Accrued Amounts will be
payable to the Existing Lender; and


 


(ii)                               the amount payable to the New Lender on that date will be the amount
which would, but for the application of this Clause 24.9, have been payable to
it on that date, but after deduction of the Accrued Amounts.


 


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25.                           CHANGES
TO THE OBLIGORS


 


25.1                     Assignments
and transfer by Obligors


 


No Obligor may assign any of its rights or
transfer any of its rights or obligations under the Finance Documents.


 


25.2                     Additional
Borrowers


 


(a)                            Subject to compliance with the provisions of paragraphs (c) and (d) of
Clause 20.10 (“Know your customer” checks),
the Company may request that any of its wholly-owned Subsidiaries becomes an
Additional Borrower.  That Subsidiary
shall become an Additional Borrower if:


 


(i)                                      in relation to any Subsidiary not incorporated in England and Wales,
France, Italy, the Netherlands, Germany or the Grand Duchy of Luxembourg,
all the Lenders approve the addition of that Subsidiary (such approval not to
be unreasonably withheld);


 


(ii)                                   the Company delivers to the Agent a duly completed and executed
Accession Letter;


 


(iii)                                the Company confirms that no Default is continuing or would occur as a
result of that Subsidiary becoming an Additional Borrower; and


 


(iv)                               the Agent has received all of the documents and other evidence listed in
Part II of Schedule 2 (Conditions
precedent) in relation to that Additional Borrower, each in form and
substance satisfactory to the Agent.


 


(b)                           The Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it) all
the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent).


 


(c)                            Upon becoming an Additional Borrower that Subsidiary shall make any
filings (and provide copies of such filings) as required by paragraphs (n)(ii) and
(p) of Clause 13.2 (Tax gross-up)
and paragraph (b) of Clause 13.7 (HMRC DT Treaty Passport
scheme confirmation) in accordance with those paragraphs.


 


25.3                     Resignation
of a Borrower


 


(a)                            The Company may request that a Borrower (other than, if applicable, the
Company) ceases to be a Borrower by delivering to the Agent a Resignation
Letter.


 


(b)                           The Agent shall accept a Resignation Letter and notify the Company and
the Lenders of its acceptance if:


 


(i)                                      no Default is continuing or would result from the acceptance of the
Resignation Letter (and the Company has confirmed this is the case); and


 


(ii)                                   the Borrower is under no actual or contingent obligations as a Borrower
under any Finance Documents,


 


whereupon that company shall cease to be a
Borrower and shall have no further rights or obligations under the Finance
Documents.


 


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25.4                     Repetition
of Representations


 


Delivery of an Accession Letter constitutes confirmation
by the Company that the Repeating Representations are true and correct in
relation to the relevant Subsidiary as at the date of delivery as if made by
reference to the facts and circumstances then existing.


 


79

















 


SECTION 10


 


THE FINANCE PARTIES


 


26.                           ROLE
OF THE AGENT AND THE ARRANGER


 


26.1                     Appointment
of the Agent


 


(a)                            Each other Finance Party appoints the Agent to act as its agent under
and in connection with the Finance Documents.


 


(b)                           Each other Finance Party authorises the Agent to exercise the rights,
powers, authorities and discretions specifically given to the Agent under or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and discretions.


 


(c)                            Each of the parties hereby grants the Agent exemption from the
restriction of section 181 of the BGB and from any similar restrictions of the
applicable laws of any other country, in each case to the extent such exemption
can be granted by the relevant party under applicable law or contract.


 


26.2                     Duties
of the Agent


 


(a)                            Subject to paragraph (b) below, the Agent shall promptly forward to
a Party the original or a copy of any document which is delivered to the Agent
for that Party by any other Party.


 


(b)                           Without prejudice to Clause 24.7 (Copy of Transfer
Certificate or Assignment Agreement to Company), paragraph (a) above
shall not apply to any Transfer Certificate or to any Assignment Agreement.


 


(c)                            Except where a Finance Document specifically provides otherwise, the
Agent is not obliged to review or check the adequacy, accuracy or completeness
of any document it forwards to another Party.


 


(d)                           If the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a Default,
it shall promptly notify the Finance Parties.


 


(e)                            If the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than the Agent or
the Arranger) under this Agreement it shall promptly notify the other Finance
Parties.


 


(f)                              The Agent shall provide to the Company within ten Business Days of a
request by the Company (but shall not be required to do so any more frequently
than once per calendar month), a list (which may be in electronic form) setting
out the names of the Lenders as at the date of that request, their respective
Commitments, the address and fax number (and the department or officer, if any,
for whose attention any communication is to be made) of each Lender for any
communication to be made or document to be delivered under or in connection
with the Finance Documents, the electronic mail address and/or any other
information required to enable the sending and receipt of information by electronic
mail or other electronic means to and by each Lender to whom any communication
under or in connection with the Finance Documents may be made by that means and
the account details of each Lender for any payment to be distributed by the
Agent to that Lender under the Finance Documents.


 


(g)                           Once every calendar year, the Agent will cooperate with the Company in
validating any procedures relating to the delivery, processing, execution or
otherwise of any settlement 


 


80

















 


instructions
or other notice, request, document or communication delivered under the Finance
Documents.


 


(h)                           The Agent’s duties under the Finance Documents are solely mechanical and
administrative in nature.


 


26.3                     Role
of the Arranger


 


Except as specifically provided in the Finance
Documents, the Arranger has no obligations of any kind to any other Party under
or in connection with any Finance Document.


 


26.4                     No
fiduciary duties


 


(a)                            Nothing in this Agreement constitutes the Agent or the Arranger as a
trustee or fiduciary of any other person.


 


(b)                           Neither the Agent nor the Arranger shall be bound to account to any
Lender for any sum or the profit element of any sum received by it for its own
account.


 


26.5                     Business
with the Group


 


The Agent and the Arranger may accept deposits
from, lend money to and generally engage in any kind of banking or other
business with any member of the Group.


 


26.6                     Rights
and discretions of the Agent


 


(a)                            The Agent may rely on:


 


(i)                                      any representation, notice or document believed by it to be genuine,
correct and appropriately authorised; and


 


(ii)                                   any statement made by a director, authorised signatory or employee of
any person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to verify.


 


(b)                           The Agent may assume (unless it has received notice to the contrary in
its capacity as agent for the Lenders) that:


 


(i)                                      no Default has occurred (unless it has actual knowledge of a Default
arising under Clause 23.1 (Non-payment));


 


(ii)                                   any right, power, authority or discretion vested in any Party or the
Majority Lenders has not been exercised; and


 


(iii)                                any notice or request made by the Company (other than a Utilisation
Request) is made on behalf of and with the consent and knowledge of all the
Obligors.


 


(c)                            The Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other experts.


 


(d)                           The Agent may act in relation to the Finance Documents through its
personnel and agents.


 


(e)                            The Agent may disclose to any other Party any information it reasonably
believes it has received as agent under this Agreement.


 


(f)                              Without prejudice to the generality of paragraph (e) above, the
Agent may disclose the identity of a Defaulting Lender to the other Finance
Parties and the Company and shall disclose the same upon the written request of
the Company or the Majority Lenders.


 


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(g)                           Notwithstanding any other provision of any Finance Document to the contrary,
neither the Agent nor the Arranger is obliged to do or omit to do anything if
it would or might in its reasonable opinion constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of confidentiality.


 


(h)                           The Agent is not obliged to disclose to any Finance Party any details of
the rate notified to the Agent by any Lender or the identity of any such Lender
for the purpose of paragraph (a)(ii) of Clause 11.2 (Market disruption).


 


26.7                     Majority
Lenders’ instructions


 


(a)                            Unless a contrary indication appears in a Finance Document, the Agent
shall (i) exercise any right, power, authority or discretion vested in it
as Agent in accordance with any instructions given to it by the Majority
Lenders (or, if so instructed by the Majority Lenders, refrain from exercising
any right, power, authority or discretion vested in it as Agent) and (ii) not
be liable for any act (or omission) if it acts (or refrains from taking any
action) in accordance with an instruction of the Majority Lenders.


 


(b)                           Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the Finance
Parties.


 


(c)                            The Agent may refrain from acting in accordance with the instructions of
the Majority Lenders (or, if appropriate, the Lenders) until it has received
such security as it may require for any cost, loss or liability (together with
any associated VAT) which it may incur in complying with the instructions.


 


(d)                           In the absence of instructions from the Majority Lenders (or, if
appropriate, the Lenders), the Agent may act (or refrain from taking action) as
it considers to be in the best interest of the Lenders.


 


(e)                            The Agent is not authorised to act on behalf of a Lender (without first
obtaining that Lender’s consent) in any legal or arbitration proceedings
relating to any Finance Document.


 


26.8                     Responsibility
for documentation


 


Neither the Agent nor the Arranger:


 


(a)                                   is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the Arranger, an
Obligor or any other person given in or in connection with any Finance Document
or the Information Package; or


 


(b)                                  is responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement or
document entered into, made or executed in anticipation of or in connection
with any Finance Document; or


 


(c)                                   is responsible for any determination as to whether any information
provided or to be provided to any Finance Party is non-public information the
use of which may be regulated or prohibited by applicable law or regulation
relating to insider dealing or otherwise.


 


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26.9                     Exclusion
of liability


 


(a)                            Without limiting paragraph (b) below (and without prejudice to the
provisions of paragraph (e) of Clause 29.11 (Disruption to Payment Systems etc)), the Agent will not be
liable including without limitation for negligence or any other category of
liability whatsoever for any action taken by it under or in connection with any
Finance Document, unless directly caused by its gross negligence or wilful
misconduct.


 


(b)                           No Party (other than the Agent) may take any proceedings against any
officer, employee or agent of the Agent in respect of any claim it might have
against the Agent or in respect of any act or omission of any kind by that
officer, employee or agent in relation to any Finance Document and any officer,
employee or agent of the Agent may rely on this Clause.


 


(c)                            The Agent will not be liable for any delay (or any related consequences)
in crediting an account with an amount required under the Finance Documents to
be paid by the Agent if the Agent has taken all necessary steps as soon as
reasonably practicable to comply with the regulations or operating procedures
of any recognised clearing or settlement system used by the Agent for that
purpose.


 


(d)                           Nothing in this Agreement shall oblige the Agent or the Arranger to
carry out any “know your customer” or other checks in relation to any person on
behalf of any Lender and each Lender confirms to the Agent and the Arranger
that it is solely responsible for any such checks it is required to carry out
and that it may not rely on any statement in relation to such checks made by
the Agent or the Arranger.


 


26.10               Lenders’
indemnity to the Agent


 


Each Lender shall (in proportion to its share
of the Total Commitments or, if the Total Commitments are then zero, to its
share of the Total Commitments immediately prior to their reduction to zero)
indemnify the Agent, within three Business Days of demand, against any cost,
loss or liability including without limitation for negligence or any other
category of liability whatsoever incurred by the Agent (otherwise than by
reason of the Agent’s gross negligence or wilful misconduct) (or in the case of
any cost, loss or liability pursuant to Clause 29.11 (Disruption to Payment Systems etc)
notwithstanding the Agent’s negligence, gross negligence or any other category
of liability whatsoever but not including any claim based on the fraud of the
Agent) in acting as Agent under the Finance Documents (unless the Agent has
been reimbursed by an Obligor pursuant to a Finance Document).


 


26.11               Resignation
of the Agent


 


(a)                            The Agent may resign and (subject to reasonable notice and to prior
consultation with the Company) appoint one of its Affiliates acting through an
office in the United Kingdom as successor by giving notice to the other Finance
Parties and the Company.


 


(b)                           Alternatively the Agent may resign by giving 30 days’ notice to the
other Finance Parties and the Company, in which case the Majority Lenders
(after consultation with the Company) may appoint a successor Agent.


 


(c)                            If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 20 days after notice of
resignation was given, the retiring Agent (after consultation 


 


83

















 


with
the Company) may appoint a successor Agent (acting through an office in  the United Kingdom.


 


(d)                           The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its
functions as Agent under the Finance Documents.


 


(e)                            The Agent’s resignation notice shall only take effect upon the
appointment of a successor.


 


(f)                              Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance Documents but
shall remain entitled to the benefit of this Clause 26.  Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves as they would
have had if such successor had been an original Party.


 


(g)                           After consultation with the Company, the Majority Lenders may, by notice
to the Agent, require it to resign in accordance with paragraph (b) above.  In this event, the Agent shall resign in
accordance with paragraph (b) above.


 


26.12               Replacement
of the Agent


 


(a)                            After consultation with the Company, the Majority Lenders may, by giving
30 days’ notice to the Agent (or, at any time the Agent is an Impaired Agent,
by giving any shorter notice determined by the Majority Lenders) replace the
Agent by appointing a successor Agent.


 


(b)                           The retiring Agent shall (at its own cost if it is an Impaired Agent and
otherwise at the expense of the Lenders) make available to the successor Agent
such documents and records and provide such assistance as the successor Agent
may reasonably request for the purposes of performing its functions as Agent
under the Finance Documents.


 


(c)                            The appointment of the successor Agent shall take effect on the date
specified in the notice from the Majority Lenders to the retiring Agent. As
from this date, the retiring Agent shall be discharged from any further
obligation in respect of the Finance Documents but shall remain entitled to the
benefit of this Clause 26 (and any agency fees for the account of the retiring
Agent shall cease to accrue from (and shall be payable on) that date).


 


(d)                           Any successor Agent and each of the other Parties shall have the same
rights and obligations amongst themselves as they would have had if such
successor had been an original Party.


 


26.13               Confidentiality


 


(a)                            In acting as agent for the Finance Parties, the Agent shall be regarded
as acting through its agency division which shall be treated as a separate
entity from any other of its divisions or departments.


 


(b)                           If information is received by another division or department of the
Agent, it may be treated as confidential to that division or department and the
Agent shall not be deemed to have notice of it.


 


26.14               Relationship
with the Lenders


 


(a)                            Subject to Clause 24.9 (Pro rata interest
settlement), the Agent may treat the person shown in its records as
Lender at the opening of business (in the place of the Agent’s principal office
as notified to the Finance Parties from time to time) as the Lender acting
through its Facility Office:


 


84

















 


(i)                                      entitled to or liable for any payment due under any Finance Document on
that day; and


 


(ii)                                   entitled to receive and act upon any notice, request, document or
communication or make any decision or determination under any Finance Document
made or delivered on that day,


 


unless it has received not less than five
Business Days prior notice from that Lender to the contrary in accordance with
the terms of this Agreement.


 


(b)                           Each Lender shall supply the Agent with any information required by the
Agent in order to calculate the Mandatory Cost in accordance with Schedule 4 (Mandatory Cost  Formulae).


 


(c)                            Any Lender may by notice to the Agent appoint a person to receive on its
behalf all notices, communications, information and documents to be made or
despatched to that Lender under the Finance Documents. Such notice shall
contain the address, fax number and (where communication by electronic mail or
other electronic means is permitted under Clause 31.6 (Electronic
communication)) electronic mail address and/or any other information
required to enable the sending and receipt of information by that means (and,
in each case, the department or officer, if any, for whose attention
communication is to be made) and be treated as a notification of a substitute
address, fax number, electronic mail address, department and officer by that
Lender for the purposes of Clause 31.2 (Addresses) and
paragraph (a)(iii) of Clause 31.6 (Electronic communication)
and the Agent shall be entitled to treat such person as the person entitled to
receive all such notices, communications, information and documents as though
that person were that Lender.


 


26.15               Credit
appraisal by the Lenders


 


Without affecting the responsibility of any
Obligor for information supplied by it or on its behalf in connection with any
Finance Document, each Lender confirms to the Agent and the Arranger that it
has been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited to:


 


(a)                                   the financial condition, status and nature of each member of the Group;


 


(b)                                  the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document and any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any Finance
Document;


 


(c)                                   whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or in
connection with any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any Finance
Document; and


 


(d)                                  the adequacy, accuracy and/or completeness of the Information Package
and any other information provided by the Agent, any Party or by any other
person under or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or in
connection with any Finance Document.


 


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26.16               Reference
Banks


 


If a Reference Bank (or, if a Reference Bank is
not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender,
the Agent shall (in consultation with the Company) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.


 


26.17               Deduction
from amounts payable by the Agent


 


If any Party owes an amount to the Agent under
the Finance Documents the Agent may, after giving notice to that Party, deduct
an amount not exceeding that amount from any payment to that Party which the
Agent would otherwise be obliged to make under the Finance Documents and apply
the amount deducted in or towards satisfaction of the amount owed.  For the purposes of the Finance Documents
that Party shall be regarded as having received any amount so deducted.


 


27.                           CONDUCT
OF BUSINESS BY THE FINANCE PARTIES


 


(a)                            No provision of this Agreement will:


 


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


 


(ii)            oblige any Finance Party to investigate or claim any
credit, relief, remission or repayment available to it or the extent, order and
manner of any claim; or


 


(iii)           oblige any Finance Party to disclose any information
relating to its affairs (tax or otherwise) or any computations in respect of
Tax.


 


(b)                           Notwithstanding any other provision of this Agreement, the Parties
hereby agree that each such Party (and each employee, representative, or other
agent of such Party) may disclose to any and all persons, without limitation of
any kind, the U.S. tax treatment and U.S. tax structure of the transaction and
all materials of any kind (including opinions or other tax analyses) that are
provided to such Party relating to such U.S. tax treatment and U.S. tax
structure.


 


28.                           SHARING
AMONG THE FINANCE PARTIES


 


28.1                     Payments
to Finance Parties


 


If a Finance Party (a “Recovering Finance Party”) receives or
recovers any amount from an Obligor other than in accordance with Clause 29 (Payment mechanics) (a “Recovered Amount”) and applies that amount
to a payment due under the Finance Documents then:


 


(a)                                   the Recovering Finance Party shall, within three Business Days, notify
details of the receipt or recovery to the Agent;


 


(b)                                  the Agent shall determine whether the receipt or recovery is in excess
of the amount the Recovering Finance Party would have been paid had the receipt
or recovery been received or made by the Agent and distributed in accordance
with Clause 29 (Payment mechanics),
without taking account of any Tax which would be imposed on the Agent in
relation to the receipt, recovery or distribution; and


 


(c)                                   the Recovering Finance Party shall, within three Business Days of demand
by the Agent, pay to the Agent an amount (the “Sharing Payment”) equal to such receipt or recovery less any
amount which the Agent determines may be retained by the Recovering 


 


86

















 


Finance
Party as its share of any payment to be made, in accordance with Clause 29.6 (Partial payments).


 


28.2                     Redistribution
of payments


 


The Agent shall treat the Sharing Payment as if
it had been paid by the relevant Obligor and distribute it between the Finance
Parties (other than the Recovering Finance Party) (the “Sharing Finance Parties”) in accordance
with Clause 29.6 (Partial payments)
towards the obligations of that Obligor to the Sharing Finance Parties.


 


28.3                     Recovering
Finance Party’s rights


 


On a distribution by the Agent under Clause
28.2 (Redistribution of payments) of a payment
received by a Recovering Finance Party from an Obligor, as between the relevant
Obligor and the Recovering Finance Party, an amount of the Recovered Amount
equal to the Sharing Payment will be treated as not having been paid by that
Obligor.


 


28.4                     Reversal
of redistribution


 


If any part of the Sharing Payment received or
recovered by a Recovering Finance Party becomes repayable and is repaid by that
Recovering Finance Party, then:


 


(a)                                   each Sharing Finance Party shall, upon request of the Agent, pay to the
Agent for account of that Recovering Finance Party an amount equal to the
appropriate part of its share of the Sharing Payment (together with an amount
as is necessary to reimburse that Recovering Finance Party for its proportion
of any interest on the Sharing Payment which that Recovering Finance Party is
required to pay) (the “Redistributed Amount”);
and


 


(b)                                  as between the relevant Obligor and each relevant Sharing Finance Party,
an amount equal to the relevant Redistributed Amount will be treated as not
having been paid by that Obligor.


 


28.5                     Exceptions


 


(a)                            This Clause 28 shall not apply to the extent that the Recovering Finance
Party would not, after making any payment pursuant to this Clause, have a valid
and enforceable claim against the relevant Obligor.


 


(b)                           A Recovering Finance Party is not obliged to share with any other
Finance Party any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings, if:


 


(i)                                      it notified that other Finance Party of the legal or arbitration
proceedings; and


 


(ii)                                   that other Finance Party had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or
arbitration proceedings.


 


87






 












 


SECTION 11


 


ADMINISTRATION


 


29.                           PAYMENT
MECHANICS


 


29.1                     Payments
to the Agent


 


(a)                            On each date on which an Obligor or a Lender is required to make a
payment under a Finance Document, that Obligor or Lender shall make the same
available to the Agent (unless a contrary indication appears in a Finance
Document) for value on the due date at the time and in such funds specified by
the Agent as being customary at the time for settlement of transactions in the
relevant currency in the place of payment.


 


(b)                           Payment shall be made to such account in the principal financial centre
of the country of that currency (or, in relation to euro, in the principal
financial centre in a Participating Member State or London) with such bank as
the Agent specifies.


 


29.2                     Distributions
by the Agent


 


Each payment received by the Agent under the
Finance Documents for another Party shall, subject to Clause 29.3 (Distributions to  an  Obligor)
and Clause 29.4 (Clawback), be
made available by the Agent as soon as practicable after receipt to the Party
entitled to receive payment in accordance with this Agreement (in the case of a
Lender, for the account of its Facility Office), to such account as that Party
may notify to the Agent by not less than five Business Days’ notice with a bank
in the principal financial centre of the country of that currency.


 


29.3                     Distributions
to an Obligor


 


The Agent may (with the consent of the Obligor
or in accordance with Clause 30 (Set-off))
apply any amount received by it for that Obligor in or towards payment (on the
date and in the currency and funds of receipt) of any amount due from that
Obligor under the Finance Documents or in or towards purchase of any amount of
any currency to be so applied.


 


29.4                     Clawback


 


(a)                            Where a sum is to be paid to the Agent under the Finance Documents for
another Party, the Agent is not obliged to pay that sum to that other Party (or
to enter into or perform any related exchange contract) until it has been able
to establish to its satisfaction that it has actually received that sum.


 


(b)                           If the Agent pays an amount to another Party and it proves to be the
case that the Agent had not actually received that amount, then the Party to
whom that amount (or the proceeds of any related exchange contract) was paid by
the Agent shall on demand refund the same to the Agent together with interest
on that amount from the date of payment to the date of receipt by the Agent,
calculated by the Agent to reflect its cost of funds.


 


29.5                     Impaired
Agent


 


(a)                            If, at any time, the Agent becomes an Impaired Agent, an Obligor or a
Lender which is required to make a payment under the Finance Documents to the
Agent in accordance with Clause 29.1 (Payments
to the Agent) may instead either pay that amount direct to the
required recipient or pay that amount to an interest-bearing account held with
an Acceptable Bank within the meaning of paragraph (a) of the definition
of “Acceptable Bank” and in
relation to which no Insolvency 


 


88

















 


Event
has occurred and is continuing, in the name of the Obligor or the Lender making
the payment and designated as a trust account for the benefit of the Party or
Parties beneficially entitled to that payment under the Finance Documents. In
each case such payments must be made on the due date for payment under the
Finance Documents.


 


(b)                           All interest accrued on the amount standing to the credit of the trust
account shall be for the benefit of the beneficiaries of that trust account pro
rata to their respective entitlements.


 


(c)                            A Party which has made a payment in accordance with this Clause 29.5
shall be discharged of the relevant payment obligation under the Finance
Documents and shall not take any credit risk with respect to the amounts
standing to the credit of the trust account.


 


(d)                           Promptly upon the appointment of a successor Agent in accordance with
Clause 26.12 (Replacement of the Agent),
each Party which has made a payment to a trust account in accordance with this
Clause 29.5 shall give all requisite instructions to the bank with whom the
trust account is held to transfer the amount (together with any accrued
interest) to the successor Agent for distribution in accordance with Clause
29.2 (Distributions by the Agent).


 


29.6                     Partial
payments


 


(a)                            If the Agent receives a payment that is insufficient to discharge all
the amounts then due and payable by an Obligor under the Finance Documents, the
Agent shall apply that payment towards the obligations of that Obligor under
the Finance Documents in the following order:


 


(i)                                      first, in or towards payment pro rata of any unpaid fees, costs and
expenses of the Agent or the Arranger under the Finance Documents;


 


(ii)                                   secondly, in or towards payment pro rata of any accrued interest, fee or
commission due but unpaid under this Agreement;


 


(iii)                                thirdly, in or towards payment pro rata of any principal due but unpaid
under this Agreement; and


 


(iv)                               fourthly, in or towards payment pro rata of any other sum due but unpaid
under the Finance Documents.


 


(b)                           The Agent shall, if so directed by all the Lenders, vary the order set
out in paragraphs (a)(ii) to (iv) above.


 


(c)                            Paragraphs (a) and (b) above will override any appropriation
made by an Obligor.


 


29.7                     No
set-off by Obligors


 


All payments to be made by an Obligor under the
Finance Documents shall be calculated and be made without (and free and clear
of any deduction for) set-off or counterclaim.


 


29.8                     Business
Days


 


(a)                            Any payment which is due to be made on a day that is not a Business Day
shall be made on the next Business Day in the same calendar month (if there is
one) or the preceding Business Day (if there is not).


 


(b)                           During any extension of the due date for payment of any principal or
Unpaid Sum under this Agreement interest is payable on the principal or Unpaid
Sum at the rate payable on the original due date.


 


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29.9                     Currency
of account


 


(a)                            Subject to paragraphs (b) to (e) below, the Base Currency is
the currency of account and payment for any sum due from an Obligor under any
Finance Document.


 


(b)                           A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum
shall be made in the currency in which that Loan or Unpaid Sum is denominated
on its due date.


 


(c)                            Each payment of interest shall be made in the currency in which the sum
in respect of which the interest is payable was denominated when that interest
accrued.


 


(d)                           Each payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are incurred.


 


(e)                            Any amount expressed to be payable in a currency other than the Base
Currency shall be paid in that other currency.


 


29.10               Change of
currency


 


(a)                            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 Finance Documents to, and any obligations arising
under the Finance 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 Company); 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).


 


(b)                           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 Company)
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.


 


29.11               Disruption
to Payment Systems etc.


 


If either the Agent determines (in its
discretion) that a Disruption Event has occurred or the Agent is notified by
the Company that a Disruption Event has occurred:


 


(a)                                   the Agent may, and shall if requested to do so by the Company, consult
with the Company with a view to agreeing with the Company such changes to the
operation or administration of the Facilities as the Agent may deem necessary
in the circumstances;


 


(b)                                  the Agent shall not be obliged to consult with the Company in relation
to any changes mentioned in paragraph (a) if, in its opinion, it is not
practicable to do so in the circumstances and, in any event, shall have no
obligation to agree to such changes;


 


(c)                                   the Agent may consult with the Finance Parties in relation to any
changes mentioned in paragraph (a) but shall not be obliged to do so if,
in its opinion, it is not practicable to do so in the circumstances;


 


(d)                                  any such changes agreed upon by the Agent and the Company shall (whether
or not it is finally determined that a Disruption Event has occurred) be
binding upon the Parties as 


 


90

















 


an
amendment to (or, as the case may be, waiver of) the terms of the Finance
Documents notwithstanding the provisions of Clause 35 (Amendments
and Waivers);


 


(e)                                   the Agent shall not be liable for any damages, costs or losses
whatsoever (including, without limitation for negligence, gross negligence or
any other category of liability whatsoever but not including any claim based on
the fraud of the Agent) arising as a result of its taking, or failing to take,
any actions pursuant to or in connection with this Clause 29.11; and


 


(f)                                     the Agent shall notify the Finance Parties of all changes agreed
pursuant to paragraph (d) above.


 


30.                           SET-OFF


 


Without prejudice to their rights at law, at
any time while an Event of Default has occurred and is continuing, a Finance
Party may set off any matured obligation due from an Obligor under the Finance
Documents (to the extent beneficially owned by that Finance Party) against any
matured obligation owed by that Finance Party to that Obligor, regardless of
the place of payment, booking branch or currency of either obligation.  If the obligations are in different
currencies, the Finance Party may convert either obligation at a market rate of
exchange in its usual course of business for the purpose of the set-off.


 


31.                           NOTICES


 


31.1                     Communications
in writing


 


Any communication to be made under or in
connection with the Finance Documents shall be made in writing and, unless
otherwise stated, may be made by fax or letter.


 


31.2                     Addresses


 


The address and fax number (and the department
or officer, if any, for whose attention the communication is to be made) of
each Party for any communication or document to be made or delivered under or
in connection with the Finance Documents is:


 


(a)                                   in the case of the Company, that identified with its name below;


 


(b)                                  in the case of each Lender or any other Original Obligor, that notified
in writing to the Agent on or prior to the date on which it becomes a Party;
and


 


(c)                                   in the case of the Agent, that identified with its name below,


 


or any substitute address, fax number or
department or officer as the Party may notify to the Agent (or the Agent may
notify to the other Parties, if a change is made by the Agent) by not less than
five Business Days’ notice.


 


31.3                     Delivery


 


(a)                            Any communication or document made or delivered by one person to another
under or in connection with the Finance Documents will only be effective:


 


(i)                                      if by way of fax, when received in legible form; or


 


91

















 


(ii)                                   if by way of letter, when it has been left at the relevant address or
five Business Days after being deposited in the post postage prepaid in an
envelope addressed to it at that address,


 


and, if a particular department or officer is
specified as part of its address details provided under Clause 31.2 (Addresses), if addressed to that
department or officer.


 


(b)                           Any communication or document to be made or delivered to the Agent will
be effective only when actually received by the Agent and then only if it is
expressly marked for the attention of the department or officer identified with
the Agent’s signature below (or any substitute department or officer as the
Agent shall specify for this purpose).


 


(c)                            All notices from or to an Obligor shall be sent through the Agent.


 


(d)                           Any communication or document made or delivered to the Company in
accordance with this Clause will be deemed to have been made or delivered to
each of the Obligors.


 


31.4                     Notification
of address and fax number


 


Promptly upon receipt of notification of an
address and fax number or change of address or fax number pursuant to Clause
31.2 (Addresses) or changing its
own address or fax number, the Agent shall notify the other Parties.


 


31.5                     Communication
when Agent is Impaired Agent


 


If the Agent is an Impaired Agent the Parties
may, instead of communicating with each other through the Agent, communicate
with each other directly and (while the Agent is an Impaired Agent) all the
provisions of the Finance Documents which require communications to be made or
notices to be given to or by the Agent shall be varied so that communications
may be made and notices given to or by the relevant Parties directly. This
provision shall not operate after a replacement Agent has been appointed.


 


31.6                     Electronic
communication


 


(a)                            Any communication to be made between the Agent and a Lender under or in
connection with the Finance 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.


 


(b)                           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.


 


31.7                     English
language


 


(a)                            Any notice given under or in connection with any Finance Document must
be in English.


 


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(b)                           All other documents provided under or in connection with any Finance
Document must be:


 


(i)                                      in English; or


 


(ii)                                   if not in English, and if so required by the Agent, accompanied by a
certified English translation and, in this case, the English translation will
prevail unless the document is a constitutional, statutory or other official
document.


 


32.                           CALCULATIONS
AND CERTIFICATES


 


32.1                     Accounts


 


In any litigation or arbitration proceedings
arising out of or in connection with a Finance Document, the entries made in
the accounts maintained by a Finance Party are prima facie evidence of the
matters to which they relate.


 


32.2                     Certificates
and Determinations


 


Any certification or determination by a Finance
Party of a rate or amount under any Finance Document is, in the absence of
manifest error, conclusive evidence of the matters to which it relates.


 


32.3                     Day
count convention


 


Any interest, commission or fee accruing under
a Finance Document will accrue from day to day and is calculated on the basis
of the actual number of days elapsed and a year of 360 days or, in any case
where the practice in the Relevant Interbank Market differs, in accordance with
that market practice.


 


33.                           PARTIAL
INVALIDITY


 


If, at any time, any provision of the Finance
Documents is or becomes illegal, invalid or unenforceable in any respect under
any law of any jurisdiction, neither the legality, validity or enforceability
of the remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way be
affected or impaired.


 


34.                           REMEDIES
AND WAIVERS


 


No failure to exercise, nor any delay in
exercising, on the part of any Finance Party, any right or remedy under the
Finance Documents shall operate as a waiver, nor shall any single or partial
exercise of any right or remedy prevent any further or other exercise or the
exercise of any other right or remedy. 
The rights and remedies provided in this Agreement are cumulative and
not exclusive of any rights or remedies provided by law.


 


35.                           AMENDMENTS
AND WAIVERS


 


35.1                     Required
consents


 


(a)                            Subject to Clause 35.2 (Exceptions)
any term of the Finance Documents may be amended or waived only with the
consent of the Majority Lenders and the Company and any such amendment or
waiver will be binding on all Parties.


 


(b)                           The Agent may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this Clause.


 


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35.2                     Exceptions


 


(a)                            An amendment or waiver that has the effect of changing or which relates
to:


 


(i)                                      the definition of “Majority Lenders” in Clause 1.1 (Definitions);


 


(ii)                                   an extension to the date of payment of any amount under the Finance
Documents;


 


(iii)                                a reduction in the Margin or a reduction in the amount of any payment of
principal, interest, fees or commission payable;


 


(iv)                               an increase in or an extension of any Commitment;


 


(v)                                  a change to the Borrowers or the Company as guarantor other than in
accordance with Clause 25 (Changes to the
Obligors);


 


(vi)                               any provision which expressly requires the consent of all the Lenders;
or


 


(vii)                            Clause 2.3 (Finance Parties’ rights
and obligations), Clause 24 (Changes
to the Lenders), Clause 28 (Sharing
among the Finance Parties) or this Clause 35; or


 


(viii)                         the
nature or scope of the guarantee and indemnity granted under Clause 18 (Guarantee and indemnity),


 


shall not be made
without the prior consent of all the Lenders.


 


(b)                           An amendment or waiver which relates to the rights or obligations of the
Agent or the Arranger (each in their capacity as such) may not be effected
without the consent of the Agent or, as the case may be, the Arranger.


 


(c)                            If any Lender fails to respond to a request for a consent, waiver,
amendment of or in relation to any of the terms of any Finance Document or
other vote of Lenders under the terms of this Agreement within the period of time specified by the Agent
(which shall not be less than 15 Business Days) of that request being made, its
Commitment and/or participation in the Utilisations then outstanding shall not
be included for the purpose of calculating the Total Commitments or
participations when ascertaining whether any relevant percentage of Total
Commitments and/or participations has been obtained to approve that request.


 


35.3                     Disenfranchisement
of Defaulting Lenders


 


(a)                            For so long as a Defaulting Lender has any Available Commitment, in
ascertaining the Majority Lenders or whether any given percentage (including,
for the avoidance of doubt, unanimity) of the Total Commitments has been
obtained to approve any request for a consent, waiver, amendment or other vote
under the Finance Documents, that Defaulting Lender’s Commitments will be
reduced by the amount of its Available Commitments.


 


(b)                           For the purposes of this Clause 35.3, the Agent may assume that the
following Lenders are Defaulting Lenders:


 


(i)                                      any Lender which has notified the Agent that it has become a Defaulting
Lender;


 


(ii)                                   any Lender in relation to which it is aware that any of the events or
circumstances referred to in paragraphs (a), (b) or (c) of the
definition of “Defaulting Lender”
has occurred,


 


94

















 


unless it has received notice to the contrary
from the Lender concerned (together with any supporting evidence reasonably
requested by the Agent) or the Agent is otherwise aware that the Lender has
ceased to be a Defaulting Lender.


 


35.4                     Replacement
of a Defaulting Lender


 


(a)                            The Company may, at any time a Lender has become and continues to be a
Defaulting Lender, by giving five Business Days’ prior written notice to the
Agent and such Lender:


 


(i)                                      replace such Lender by requiring such Lender to (and such Lender shall)
transfer pursuant to Clause 24 (Changes to
the Lenders) all (and not part only) of its rights and obligations
under this Agreement;


 


(ii)                                   require such Lender to (and such Lender shall) transfer pursuant to
Clause 24 (Changes to the Lenders)
all (and not part only) of the undrawn Commitment of the Lender; or


 


(iii)                                require such Lender to (and such Lender shall) transfer pursuant to
Clause 24 (Changes to the Lenders)
all (and not part only) of its rights and obligations in respect of the Facility,


 


to a Lender or other bank, financial
institution, trust, fund or other entity (a “Replacement
Lender”) selected by the Company, and which (unless the Agent is an
Impaired Agent) is acceptable to the Agent (acting reasonably), which confirms
its willingness to assume and does assume all the obligations or all the
relevant obligations of the transferring Lender (including the assumption of
the transferring Lender’s participations or unfunded participations (as the
case may be) on the same basis as the transferring Lender) for a purchase price
in cash payable at the time of transfer equal to the outstanding principal
amount of such Lender’s participation in the outstanding Utilisations and all
accrued interest (to the extent that the Agent has not given a notification
under Clause 24.9 (Pro rata interest
settlement)), Break Costs and other amounts payable in relation
thereto under the Finance Documents.


 


(b)                           Any transfer of rights and obligations of a Defaulting Lender pursuant
to this Clause shall be subject to the following conditions:


 


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


 


(ii)                                   neither the Agent nor the Defaulting Lender shall have any obligation to
the Company to find a Replacement Lender;


 


(iii)                                the transfer must take place no later than 30 days after the notice
referred to in paragraph (a) above; and


 


(iv)                               in no event shall the Defaulting Lender be required to pay or surrender
to the Replacement Lender any of the fees received by the Defaulting Lender
pursuant to the Finance Documents.


 


36.                           CONFIDENTIALITY


 


36.1                     Confidential
Information


 


Each Finance Party agrees to keep all
Confidential Information confidential and not to disclose it to anyone, save to
the extent permitted by Clause 36.2 (Disclosure of Confidential
Information) and Clause 36.3 (Disclosure to numbering
service providers), and to ensure that all Confidential 


 


95

















 


Information is protected with security measures
and a degree of care that would apply to its own confidential information.


 


36.2                     Disclosure
of Confidential Information


 


Any Finance Party may disclose:


 


(a)                                   to any of its insurers or insurance brokers, or to any of its direct or
indirect providers of credit protection, or to any of its Affiliates and
Related Funds and any of its or their officers, directors, employees,
professional advisers, auditors, partners and Representatives such Confidential
Information as that Finance Party shall consider appropriate if any person to
whom the Confidential Information is to be given pursuant to this paragraph (a) is
informed in writing of its confidential nature and that some or all of such
Confidential Information may be price-sensitive information except that there
shall be no such requirement to so inform if the recipient is subject to
professional obligations to maintain the confidentiality of the information or
is otherwise bound by requirements of confidentiality in relation to the
Confidential Information;


 


(b)                                  to any person:


 


(i)                                  to (or through) whom it assigns or transfers (or may potentially assign
or transfer) all or any of its rights and/or obligations under one or more
Finance Documents and to any of that person’s Affiliates, Related Funds,
Representatives and professional advisers;


 


(ii)                               with (or through) whom it enters into (or may potentially enter into),
whether directly or indirectly, any sub-participation in relation to, or any
other transaction under which payments are to be made or may be made by
reference to, one or more Finance Documents and/or one or more Obligors and to
any of that person’s Affiliates, Related Funds, Representatives and
professional advisers;


 


(iii)                            appointed by any Finance Party or by a person to whom paragraph (b)(i) or
(ii) above applies to receive communications, notices, information or documents
delivered pursuant to the Finance Documents on its behalf (including, without
limitation, any person appointed under paragraph (c) of Clause 26.14 (Relationship with the Lenders));


 


(iv)                           who invests in or otherwise finances (or may potentially invest in or
otherwise finance), directly or indirectly, any transaction referred to in
paragraph (b)(i) or (b)(ii) above;


 


(v)                              to whom information is required or requested to be disclosed by any
court of competent jurisdiction or any governmental, banking, taxation or other
regulatory authority or similar body, the rules of any relevant stock
exchange or pursuant to any applicable law or regulation;


 


(vi)                           to whom or for whose benefit that Finance Party charges, assigns or
otherwise creates Security (or may do so) pursuant to Clause 24.8 (Security over Lenders’  rights);


 


96

















 


(vii)                        to
whom information is required to be disclosed in connection with, and for the
purposes of, any litigation, arbitration, administrative or other
investigations, proceedings or disputes;


 


(viii)                     who
is a Party; or


 


(ix)                             with the consent of the Company;


 


in each case, such Confidential Information as
that Finance Party shall consider appropriate if:


 


(A)                           in relation to paragraphs (b)(i), (b)(ii) and b(iii) above,
the person to whom the Confidential Information is to be given has entered into
a Confidentiality Undertaking except that there shall be no requirement for a
Confidentiality Undertaking if the recipient is a professional adviser and is
subject to professional obligations to maintain the confidentiality of the
Confidential Information;


 


(B)                             in relation to paragraph (b)(iv) above, the person to whom the
Confidential Information is to be given has entered into a Confidentiality
Undertaking or is otherwise bound by requirements of confidentiality in
relation to the Confidential Information they receive and is informed that some
or all of such Confidential Information may be price-sensitive information;


 


(C)                             in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above,
the person to whom the Confidential Information is to be given is informed of
its confidential nature and that some or all of such Confidential Information
may be price-sensitive information except that there shall be no requirement to
so inform if, in the opinion of that Finance Party, it is not practicable so to
do in the circumstances;


 


(c)                                   to any person appointed by that Finance Party or by a person to whom
paragraph (b)(i) or (b)(ii) above applies to provide administration
or settlement services in respect of one or more of the Finance Documents
including without limitation, in relation to the trading of participations in
respect of the Finance Documents, such Confidential Information as may be
required to be disclosed to enable such service provider to provide any of the
services referred to in this paragraph (c) if the service provider to whom
the Confidential Information is to be given has entered into a confidentiality
agreement substantially in the form of the LMA Master Confidentiality
Undertaking for Use With Administration/Settlement Service Providers or such
other form of confidentiality undertaking agreed between the Company and the
relevant Finance Party;


 


(d)                                  to any rating agency (including its professional advisers) such
Confidential Information as may be required to be disclosed to enable such
rating agency to carry out its normal rating activities in relation to the
Finance Documents and/or the Obligors if the rating agency to whom the
Confidential Information is to be given is informed of its confidential nature
and that some or all of such Confidential Information may be price-sensitive
information;


 


97
















 


(e)                                   the size and term of the Facility and the name of each Obligor to any
investor or a potential investor in a securitisation (or similar transaction of
broadly equivalent economic effect) of that Finance Parties’ rights or
obligations under the Finance Documents.


 


36.3                     Disclosure
to numbering service providers


 


(a)                            Any Finance Party may disclose to any national or international
numbering service provider appointed by that Finance Party to provide
identification numbering services in respect of this Agreement, the Facility
and/or one or more Obligors the following information:


 


(i)                                      names of Obligors;


 


(ii)                                   country of domicile of Obligors;


 


(iii)                                place of incorporation of Obligors;


 


(iv)                               date of this Agreement;


 


(v)                                  the names of the Agent and the Arranger;


 


(vi)                               date of each amendment and restatement of this Agreement;


 


(vii)                            amount of Total Commitments;


 


(viii)                         currencies
of the Facility;


 


(ix)                                 type of Facility;


 


(x)                                    ranking of Facility;


 


(xi)                                 Termination Date for Facility;


 


(xii)                              changes to any of the information previously supplied pursuant to
paragraphs (i) to (xi) above; and


 


(xiii)                           such other information agreed between such Finance Party and the
Company,


 


to enable such numbering service provider to
provide its usual syndicated loan numbering identification services.


 


(b)                           The Parties acknowledge and agree that each identification number
assigned to this Agreement, the Facility and/or one or more Obligors by a
numbering service provider and the information associated with each such number
may be disclosed to users of its services in accordance with the standard terms
and conditions of that numbering service provider.


 


(c)                            The Company represents that none of the information set out in
paragraphs (i) to (xiii) of paragraph (a) above is, nor will at
any time be, unpublished price-sensitive information.


 


(d)                           The Agent shall notify the Company and the other Finance Parties of:


 


(i)                                      the name of any numbering service provider appointed by the Agent in
respect of this Agreement, the Facility and/or one or more Obligors; and


 


(ii)                                   the number or, as the case may be, numbers assigned to this Agreement,
the Facility and/or one or more Obligors by such numbering service provider.


 


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36.4                     Entire
agreement


 


This Clause 36 (Confidentiality)
constitutes the entire agreement between the Parties in relation to the
obligations of the Finance Parties under the Finance Documents regarding
Confidential Information and supersedes any previous agreement, whether express
or implied, regarding Confidential Information.


 


36.5                     Inside
information


 


Each of the Finance Parties acknowledges that
some or all of the Confidential Information is or may be price-sensitive
information and that the use of such information may be regulated or prohibited
by applicable legislation including securities law relating to insider dealing
and market abuse and each of the Finance Parties undertakes not to use any
Confidential Information for any unlawful purpose.


 


36.6                     Notification
of disclosure


 


Each of the Finance Parties agrees (to the
extent permitted by law and regulation) to inform the Company:


 


(a)                                   of the circumstances of any disclosure of Confidential Information made
pursuant to paragraph (b)(v) of Clause 36.2 (Disclosure
of Confidential Information) except where such disclosure is made to
any of the persons referred to in that paragraph during the ordinary course of
its supervisory or regulatory function; and


 


(b)                                  upon becoming aware that Confidential Information has been disclosed in
breach of this Clause 36 (Confidentiality).


 


36.7                     Continuing
obligations


 


The obligations in this Clause 36 (Confidentiality) are continuing and, in particular, shall
survive and remain binding on each Finance Party for a period of twelve months
from the earlier of:


 


(a)                                   the date on which all amounts payable by the Obligors under or in
connection with this Agreement have been paid in full and all Commitments have
been cancelled or otherwise cease to be available; and


 


(b)                                  the date on which such Finance Party otherwise ceases to be a Finance
Party.


 


37.                           COUNTERPARTS


 


Each Finance Document may be executed in any
number of counterparts, and this has the same effect as if the signatures on
the counterparts were on a single copy of the Finance Document.


 


38.                           WAIVER
OF CONSEQUENTIAL DAMAGES


 


In no event shall any Finance Party be liable
on any theory of liability for any special, indirect, consequential or punitive
damages and the Company hereby waives, releases and agrees (for itself and on
behalf of its Subsidiaries) not to sue upon any such claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favour.


 


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SECTION 12


 


GOVERNING LAW AND
ENFORCEMENT


 


39.                           GOVERNING
LAW


 


This Agreement and any non-contractual
obligations arising out of or in connection with it are governed by English
law.


 


40.                           ENFORCEMENT


 


40.1                     Jurisdiction


 


(a)                            The courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
relating to the existence, validity or termination of this Agreement or any
non-contractual obligation arising out of or in connection with this Agreement)
(a “Dispute”).


 


(b)                           The Parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes and accordingly no Party will argue to
the contrary.


 


(c)                            This Clause 40.1 is for the benefit of the Finance Parties only.  As a result, no Finance Party shall be
prevented from taking proceedings relating to a Dispute in any other courts
with jurisdiction.  To the extent allowed
by law, the Finance Parties may take concurrent proceedings in any number of
jurisdictions.


 


40.2                     Service
of process


 


Without prejudice to any other mode of service
allowed under any relevant law, each Obligor (other than an Obligor
incorporated in England and Wales):


 


(a)                                   irrevocably appoints Aon UK Holdings Intermediaries Limited of 8
Devonshire Square, London EC2M 4PL, Attention: Aon Law Division as its agent for
service of process in relation to any proceedings before the English courts in
connection with any Finance Document; and


 


(b)                                  agrees that failure by a process agent to notify the relevant Obligor of
the process will not invalidate the proceedings concerned.


 


This Agreement has been
entered into on the date stated at the beginning of this Agreement.


 


100

















 


SCHEDULE
1


 


THE
ORIGINAL PARTIES


 


PART I


 


THE
ORIGINAL BORROWERS


 


	
  Name of Original Borrower

  	
   

  	
  Jurisdiction of Incorporation

  	
   

  	
  Registration number (or

  equivalent, if any)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AON LIMITED

  	
   

  	
  England and Wales

  	
   

  	
  00210725

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AON UK HOLDINGS INTERMEDIARIES LIMITED

  	
   

  	
  England and Wales

  	
   

  	
  04267675

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AON BENFIELD LIMITED

  	
   

  	
  England and Wales

  	
   

  	
  06652620

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AON HOLDINGS B.V.

  	
   

  	
  The Netherlands

  	
   

  	
  24191863

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AON GROUP INTERNATIONAL B.V.

  	
   

  	
  The Netherlands

  	
   

  	
  24387483

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AON SOUTHERN EUROPE B.V.

  	
   

  	
  The Netherlands

  	
   

  	
  33055010

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AON FINANCE LUXEMBOURG S.À.R.L., a société à responsabilité limitée

  	
   

  	
  Incorporated under
  the laws of the Grand Duchy of Luxembourg

  	
   

  	
  Registered office
  at 19, rue de Bitbourg, L-1273 Luxembourg and registered with the Luxembourg
  Register of Commerce and Companies under the number B-46.209 and having a
  corporate capital of USD 169,797.00 as at 31 December 2009.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AON FINANCIAL SERVICES LUXEMBOURG S.A., a société anonyme

  	
   

  	
  Incorporated under
  the laws of the Grand Duchy of Luxembourg

  	
   

  	
  Registered office
  at 19, rue de Bitbourg, L-1273 Luxembourg and registered with the Luxembourg
  Register of Commerce and Companies under the number B-146.352.

  



 


101

















 


PART II


 


THE
ORIGINAL LENDERS


 


	
  Name of Original Lender

  	
   

  	
  Commitment

  (€)

  	
   

  	
  Treaty Passport

  scheme reference

  number (if

  applicable)(1)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Citibank N.A., London Branch

  	
   

  	
  63,000,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ING Bank N.V.

  	
   

  	
  63,000,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Barclays Bank PLC

  	
   

  	
  63,000,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Royal Bank of Scotland plc

  	
   

  	
  51,666,667

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Morgan Stanley Bank International Limited

  	
   

  	
  51,666,667

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Credit Suisse AG, Cayman Islands Branch

  	
   

  	
  51,666,666

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ANZ Bank (Europe) Limited

  	
   

  	
  25,500,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Banc Of America Securities Limited

  	
   

  	
  25,500,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Governor and Company of the Bank of
  Ireland

  	
   

  	
  25,500,000

  	
   

  	
  012/G/57971/DTTP

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bank of Montreal

  	
   

  	
  25,500,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commerzbank Aktiengesellschaft, Filiale
  Luxemburg

  	
   

  	
  25,500,000

  	
   

  	
  7/C/25382/DTTP

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Deutsche Bank AG, London Branch

  	
   

  	
  25,500,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lloyds TSB Bank plc

  	
   

  	
  25,500,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  National Australia Bank Limited ABN 12 004
  044 937

  	
   

  	
  25,500,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Natixis

  	
   

  	
  25,500,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Standard Chartered Bank

  	
   

  	
  25,500,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UBS Limited

  	
   

  	
  25,500,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UniCredit Bank AG, London Branch

  	
   

  	
  25,500,000

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  650,000,000

  	
   

  	
   

  	
   

  



 






(1)               This must be included if the Original Lender holds a
passport under the HMRC DT Treaty Passport scheme and, as at the date of this
Agreement, wishes that scheme to apply to the Agreement.


 


102

















 


SCHEDULE
2


 


CONDITIONS
PRECEDENT


 


PART I


 


CONDITIONS
PRECEDENT TO INITIAL UTILISATION


 


1.                                 Original Obligors


 


(a)                            A copy of the constitutional documents of each Original Obligor, a
recent extract from the Dutch trade register (handelsregister)
relating to each Original Obligor incorporated in the Netherlands and an excerpt from the
Luxembourg Register of Commerce and Companies relating to each Original Obligor
incorporated in the Grand Duchy of Luxembourg.


 


(b)                           A copy of a resolution of the board of directors, the supervisory board
of directors, or the general meeting of its shareholders, or equivalent
corporate authority documentation as appropriate, of each Original Obligor or,
in the case of the Company, a certificate of an authorised signatory of the
Company setting out the terms of a resolution of the board of directors:


 


(i)                                      approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it execute the
Finance Documents to which it is a party;


 


(ii)                                   authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and


 


(iii)                                authorising a specified person or persons, on its behalf, to sign and/or
despatch all documents and notices (including, if relevant, any Utilisation
Request) to be signed and/or despatched by it under or in connection with the
Finance Documents to which it is a party.


 


(c)                            A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.


 


(d)                           A certificate of the Company dated no earlier than the date of this
Agreement (signed by an officer) confirming:


 


(i)                                      that borrowing or guaranteeing, as appropriate, the Total Commitments
would not cause any borrowing, guaranteeing or similar limit binding on any
Original Obligor to be exceeded;


 


(ii)                                   the representations made by the Company (for itself and each other
Obligor as applicable)  in the Agreement
are true and accurate;


 


(iii)                                that since 31 December 2009, no event has occurred which has had,
or could be reasonably expected to have a Material Adverse Effect;


 


(iv)                               that no litigation, arbitration, investigation or administrative
proceedings of or before any court or agency have been started or, to the
knowledge of the Company’s officers, been threatened against it or any of its
Subsidiaries which, in each case, if adversely determined, could reasonably be
expected to have a Material Adverse Effect, except for Disclosed Claims;


 


103

















 


(v)                                  that there is no subsisting unsatisfied judgement or award in an amount
exceeding US $25,000,000 given against the Company of any of its Subsidiaries
by any court, arbitrator, or other body; and


 


(vi)                               the Debt Rating Level as at that date.


 


(e)                            A certificate of an authorised signatory of the relevant Original
Obligor certifying that each copy document relating to it specified in this Part 1
of Schedule 2 is correct, complete and in full force and effect as at a date no
earlier than the date of this Agreement.


 


(f)                              In respect of the Original Obligors incorporated in the Netherlands, (i) a
copy of the positive unconditional advice of any works council (ondernemingsraad) that under the Works
Council Act (Wet op de ondernemingsraden)
has the right to give advice in relation to the entry into and
performance of this Agreement, or confirmation that no such advice is required
and (ii) a shareholders’ resolution appointing one or more authorised persons to
represent the relevant Original Obligor in the case of a conflict of interest
and a supervisory board resolution, if applicable.


 


2.                                 Legal opinions


 


(a)                            Legal opinions of Linklaters LLP, legal advisers to the Arranger and the
Agent in England, the Grand Duchy of Luxembourg and the Netherlands;


 


(b)                           Legal opinions of in house counsel of the Group in the Netherlands, the
Grand Duchy of Luxembourg, the State of Illinois and, as to matters of the
General Corporation Law, the State of Delaware, in each case in respect of
capacity and authority; and


 


(c)                            A legal opinion of Sidley Austin LLP, legal advisers to the Company in
the US,


 


in each case substantially in the form
distributed to the Original Lenders prior to signing this Agreement.


 


3.                                 Other documents and evidence


 


(a)                            Evidence that any process agent referred to in Clause 40.2 (Service of process), if not an Original
Obligor, has accepted its appointment.


 


(b)                           A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable (if it has
notified the Company accordingly prior to the date of this Agreement) in
connection with the entry into and performance of the transactions contemplated
by any Finance Document or for the validity and enforceability of any Finance
Document.


 


(c)                            The Original Financial Statements of each Original Obligor.


 


(d)                           Evidence that each Fee Letter has been duly executed by the parties to
it.


 


(e)                            Evidence that the fees, costs and expenses then due from the Company
pursuant to Clause 12 (Fees) or,
if earlier within 10 days of the date of this Agreement and Clause 17 (Costs and expenses) have been paid or will
be paid by the first Utilisation Date.


 


104

















 


(f)                              Evidence that the €650,000,000 revolving credit facility provided
pursuant to the credit agreement dated 7 February 2005 (as amended) has
been (or will be on the first Utilisation Date) cancelled and prepaid in full.


 


(g)                           Structure chart reflecting the legal structure of the Group certified by
a director or an officer of the Company as being correct and complete as at a
date no earlier than the date of this Agreement.


 


(h)                           All “know your customer” checks have been complied with.


 


(i)                               In respect of the Company, a certificate as to the existence and good
standing (including verification of tax status, if available) of the Company
from the appropriate governmental authorities in the State of Delaware.


 


105

















 


PART II


 


CONDITIONS
PRECEDENT REQUIRED TO BE

DELIVERED BY AN ADDITIONAL BORROWER


 


1.                                 An Accession Letter, duly executed by the Additional Borrower and the
Company.


 


2.                                 A copy of the constitutional documents of the Additional Borrower and/or
(as applicable) (i) in relation to an Additional Borrower incorporated in
the Netherlands a recent extract from the Dutch trade register (handelsregister), (ii) in relation to an Additional
Borrower incorporated in Germany, a certified copy of an up-to-date commercial
register extract, articles of association and list of shareholders, (iii) in
relation to an Additional Borrower incorporated in France an original of an Extrait K-bis, Certificat de non-faillite and Etat des Inscriptions not more than 10 days old, and (iv) in
relation to an Additional Borrower incorporated in the Grand Duchy of Luxembourg, an excerpt
from the Luxembourg Register of Commerce and Companies.


 


3.                                 A copy of a resolution of the board of directors, supervisory board of
shareholders’ meeting or equivalent corporate authority documentation as
applicable, of the Additional Borrower (other than an Additional Borrower
incorporated in Germany):


 


(i)                                      approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it execute the
Accession Letter;


 


(ii)                                   authorising a specified person or persons to execute the Accession
Letter on its behalf; and


 


(iii)                                authorising a specified person or persons, on its behalf, to sign and/or
despatch all other documents and notices (including any Utilisation Request) to
be signed and/or despatched by it under or in connection with the Finance
Documents.


 


4.                                 A copy of a resolution of shareholders (Gesellschafterbeschluss)
of each Additional Borrower incorporated in Germany and, where applicable, of a
supervisory board (Aufsichtsrat)
or advisory board (Beirat) of each
Additional Borrower incorporated in Germany approving the terms of, and the
transactions contemplated by, the Accession Letter and the Finance Documents
and resolving that it executes the Accession Letter and signs and/or despatches
all other documents and notices (including any Utilisation Request) to be
signed and/or despatched by it under or in connection with the Finance
Documents.


 


5.                                 A specimen of the signature of each person (i) authorised by the
resolution referred to in paragraph 3 above or (ii) being generally
authorised to execute the Accession Letter and other Finance Documents on
behalf of the Additional Borrower and to sign and/or despatch all other documents
and notices (including any Utilisation Request) to be signed and/or despatched
by it under or in connection with the Finance Documents to which it is a party.


 


6.                                 A certificate of the Additional Borrower (signed by a director or an
officer) (other than an Additional Borrower incorporated in Germany) confirming
that borrowing the Total Commitments would not cause any borrowing or similar
limit binding on it to be exceeded.


 


106

















 


7.                                 A certificate of an authorised signatory of the Additional Borrower
certifying that each copy document listed in this Part II of Schedule 2 is
correct, complete and in full force and effect as at a date no earlier than the
date of the Accession Letter.


 


8.                                 A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary in connection with the
entry into and performance of the transactions contemplated by the Accession
Letter or for the validity and enforceability of any Finance Document.


 


9.                                 If available, the latest audited financial statements of the Additional
Borrower.


 


10.                           A legal opinion of Linklaters LLP, legal advisers to the Arranger and
the Agent in England.


 


11.                           If the Additional Borrower is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the Arranger and
the Agent in the jurisdiction in which the Additional Borrower is incorporated.


 


12.                           Legal opinions of in house counsel of the Group in France, Germany, Italy,
the Grand Duchy of Luxembourg and the Netherlands in respect of capacity and
authority by any Additional Borrower incorporated in France, Germany, Italy,
the Grand Duchy of Luxembourg and the Netherlands.


 


13.                           If the proposed Additional Borrower is incorporated in a jurisdiction
other than England and Wales, evidence that the process agent specified in
Clause 40.2 (Service of process),
if not an Obligor, has accepted its appointment in relation to the proposed
Additional Borrower.


 


14.                           If the proposed Additional Borrower is incorporated in the Netherlands, (i) a
copy of the positive unconditional advice of any works council (ondernemingsraad) that under the Works
Council Act (Wet op de ondernemingsraden)
has the right to give advice in relation to the entry into and performance of
the Finance Documents and (ii) a shareholders’ resolution appointing one or
more authorised persons to represent the relevant Additional Borrower in the case of a conflict of interest and a
supervisory board resolution, if applicable.


 


15.                           In the case of an Additional Borrower incorporated in France, a letter
relating to the effective global rate (taux
effectif global) in the form of the letter at Schedule 11 (Form of TEG Letter) and countersigned
by such Additional Borrower.


 


107
















 


SCHEDULE
3


 


UTILISATION
REQUEST


 


From:                  [Name of relevant Borrower] (as Borrower) 


 


To:                              Citibank International plc (as Agent)


 


Dated:


 


Dear Sirs


 


Aon
Corporation - €650,000,000 Facility Agreement

dated [                   ] 
2010 (the “Agreement”)


 


1.                                 We refer to the Agreement. This is a Utilisation Request. Terms defined
in the Agreement have the same meaning in this Utilisation Request unless given
a different meaning in this Utilisation Request.


 


2.                                 We wish to borrow a Loan on the following terms:


 


	
  Proposed Utilisation Date:

  	
   

  	
  [                   ]
  (or, if that is not a Business Day, the next Business Day)

  
	
   

  	
   

  	
   

  
	
  Currency of Loan:

  	
   

  	
  [                   ]

  
	
   

  	
   

  	
   

  
	
  Amount:

  	
   

  	
  [                   ]
  or, if less, the Available Facility

  
	
   

  	
   

  	
   

  
	
  Interest Period:

  	
   

  	
  [1, 2, 3 or 6 months]

  



 


3.                                 We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied
on the date of this Utilisation Request.


 


4.                                 The proceeds of this Loan should be credited to [account].


 


5.                                 This Utilisation Request is irrevocable.


 


 




	
   

  	
  Yours faithfully

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  authorised signatory for

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [name of relevant
  Borrower]

  	
   

  






 


108

















 


SCHEDULE
4


 


MANDATORY
COST FORMULAE


 


1.                                 The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank
of England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.


 


2.                                 On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for each Lender, in
accordance with the paragraphs set out below.  The Mandatory Cost will be calculated by the
Agent as a weighted average of the Lenders’ Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant Loan)
and will be expressed as a percentage rate per annum.


 


3.                                 The Additional Cost Rate for any Lender lending from a Facility Office
in a Participating Member State will be the percentage notified by that Lender
to the Agent. This percentage will be certified by that Lender in its notice to
the Agent to be its reasonable determination of the cost (expressed as a
percentage of that Lender’s participation in all Loans made from that Facility
Office) of complying with the minimum reserve requirements of the European
Central Bank in respect of loans made from that Facility Office.


 


4.                                 The Additional Cost Rate for any Lender lending from a Facility Office
in the United Kingdom will be calculated by the Agent as follows:


 


(a)          in relation to a sterling Loan:


 


	
  

  	
  per cent. per annum

  



 


(b)          in relation to a Loan in any currency other than sterling:


 


	
  

  	
  per cent. per annum.

  



 


Where:


 


A                                            is the percentage of Eligible Liabilities (assuming
these to be in excess of any stated minimum) which that Lender is from time to
time required to maintain as an interest free cash ratio deposit with the Bank
of England to comply with cash ratio requirements.


 


B                                              is the percentage rate of interest (excluding the
Margin and the Mandatory Cost and, if the Loan is an Unpaid Sum, the additional
rate of interest specified in paragraph (a) of Clause 9.3 (Default interest)) payable for the
relevant Interest Period on the Loan.


 


C                                              is the percentage (if any) of Eligible Liabilities
which that Lender is required from time to time to maintain as interest bearing
Special Deposits with the Bank of England.


 


D                                             is the percentage rate per annum payable by the Bank
of England to the Agent on interest bearing Special Deposits.


 


109

















 


E                                               is designed to compensate Lenders for amounts payable
under the Fees Rules and is calculated by the Agent as being the average
of the most recent rates of charge supplied by the Reference Banks to the Agent
pursuant to paragraph 7 below and expressed in pounds per £1,000,000.


 


5.                                 For the purposes of this Schedule:


 


(a)                               “Eligible Liabilities” and “Special Deposits” have the meanings given
to them from time to time under or pursuant to the Bank of England Act 1998 or
(as may be appropriate) by the Bank of England;


 


(b)                              “Fees Rules” means the rules on
periodic fees contained in the Financial Services Authority Fees Manual or such
other law or regulation as may be in force from time to time in respect of the
payment of fees for the acceptance of deposits;


 


(c)                               “Fee Tariffs” means the fee
tariffs specified in the Fees Rules under the activity group A.1 Deposit
acceptors (ignoring any minimum fee or zero rated fee required pursuant to the
Fees Rules but taking into account any applicable discount rate); and


 


(d)                              “Tariff Base” has the
meaning given to it in, and will be calculated in accordance with, the Fees
Rules.


 


6.                                 In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5 per cent will be included in the formula as
5 and not as 0.05).  A negative result obtained
by subtracting D from B shall be taken as zero. 
The resulting figures shall be rounded to four decimal places.


 


7.                                 If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply to
the Agent, the rate of charge payable by that Reference Bank to the Financial
Services Authority pursuant to the Fees Rules in respect of the relevant
financial year of the Financial Services Authority (calculated for this purpose
by that Reference Bank as being the average of the Fee Tariffs applicable to
that Reference Bank for that financial year) and expressed in pounds per
£1,000,000 of the Tariff Base of that Reference Bank.


 


8.                                 Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate.  In particular, but without limitation, each
Lender shall supply the following information on or prior to the date on which
it becomes a Lender:


 


(a)                               the jurisdiction of its Facility Office; and


 


(b)                              any other information that the Agent may reasonably require for such
purpose.


 


Each Lender shall promptly notify the Agent of
any change to the information provided by it pursuant to this paragraph.


 


9.                                 The percentages of each Lender for the purpose of A and C above and the
rates of charge of each Reference Bank for the purpose of E above shall be
determined by the Agent based upon the information supplied to it pursuant to
paragraphs 7 and 8 above and on the assumption that, 


 


110

















 


unless
a Lender notifies the Agent to the contrary, each Lender’s obligations in
relation to cash ratio deposits and Special Deposits are the same as those of a
typical bank from its jurisdiction of incorporation with a Facility Office in
the same jurisdiction as its Facility Office.


 


10.                           The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any Lender
and shall be entitled to assume that the information provided by any Lender or
Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct in
all respects.


 


11.                           The Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate
for each Lender based on the information provided by each Lender and each
Reference Bank pursuant to paragraphs 3, 7 and 8 above.


 


12.                           Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to
a Lender shall, in the absence of manifest error, be conclusive and binding on
all Parties.


 


13.                           The Agent may from time to time, after consultation with the Company and
the Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in law,
regulation or any requirements from time to time imposed by the Bank of
England, the Financial Services Authority or the European Central Bank (or, in
any case, any other authority which replaces all or any of its functions) and
any such determination shall, in the absence of manifest error, be conclusive
and binding on all Parties.


 


111

















 


SCHEDULE
5


 


FORM OF
TRANSFER CERTIFICATE


 


To:                              Citibank International plc (as Agent)


 


From:                  [                   ]
(the “Existing Lender”) and [                   ]]
(the “New Lender”)


 


Dated:


 


Aon
Corporation - €650,000,000 Facility Agreement

dated [                   ]  2010 (the “Agreement”)


 


1.                                 We refer to the Agreement. This is a Transfer Certificate. Terms defined
in the Agreement have the same meaning in this Transfer Certificate unless
given a different meaning in this Transfer Certificate.


 


2.                                 We refer to Clause 24.5 (Procedure
for transfer):


 


(a)                               The Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by novation all or part of the Existing Lender’s
Commitment, rights and obligations referred to in the Schedule in accordance
with Clause 24.5 (Procedure for transfer).


 


(b)                              The proposed Transfer Date is [                   ].


 


(c)                               The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 31.2 (Addresses) are set out in the Schedule.


 


3.                                 The New Lender expressly acknowledges the limitations on the Existing
Lender’s obligations set out in paragraph (c) of Clause 24.4 (Limitation of responsibility of Existing Lenders).


 


4.                                 [The New Lender confirms that the person beneficially entitled to
interest payable to that Lender in respect of an advance under a Finance
Document is either:


 


(a)                                   a company resident in the United Kingdom for United Kingdom tax
purposes; or


 


(b)                                  a partnership each member of which is:


 


(i)                                  a company so resident in the United Kingdom; or


 


(ii)                               a company not so resident in the United Kingdom which carries on a trade
in the United Kingdom through a permanent establishment and which brings into
account in computing its chargeable profits (within the meaning of section 19
of the CTA) the whole of any share of interest payable in respect of that
advance that falls to it by reason of Part 17 of the CTA; or


 


(c)                                   a company not so resident in the United Kingdom which carries on a trade
in the United Kingdom through a permanent establishment and which brings into
account interest 


 


112

















 


payable
in respect of that advance in computing the chargeable profits (within the
meaning of section 19 of the CTA) of that company.](2)


 


5.                                 With respect to [insert name of
Borrower(s)], the New Lender confirms, for the benefit of the Agent
and without liability to any Obligor, that it is:


 


(i)                                      [not a Qualifying Lender]


 


(ii)                                   [a Qualifying Lender (other than a Treaty Lender)]


 


(iii)                                [a Treaty Lender].(3)


 


6.                                 [The New Lender confirms (for the benefit of the Agent and without
liability to any Obligor) that it is a Treaty Lender that holds a passport
under the HMRC DT Treaty Passport scheme (reference number [                   ]),
so that interest payable to it by borrowers is generally subject to full
exemption from UK withholding tax and notifies the Company that:


 


(i)                                      each Borrower which is a Party as a Borrower as at the Transfer Date
must make an application to HM Revenue & Customs under form DTTP-2
within 30 days of the Transfer Date; and


 


(ii)                                   each Additional Borrower which becomes an Additional Borrower after the
Transfer Date must make an application to HM Revenue & Customs under
form DTTP-2 within 30 days of becoming an Additional Borrower.](4)


 


7.                                 The New Lender expressly confirms that it [can/cannot] exempt the Agent
from the restrictions applicable to it pursuant to section 181 of the German
Civil Code and similar restrictions applicable to it pursuant to any other applicable
law as provided for in paragraph (c) of Clause 26.1 (Appointment of the Agent).


 


8.                                 This Transfer Certificate may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts were on a
single copy of this Transfer Certificate.


 


9.                                 This Transfer Certificate and any non-contractual obligations arising
out of or in connection with it are governed by English law.


 


10.                           This Transfer Certificate has been entered into on the date stated at
the beginning of this Transfer Certificate.


 


11.                           [The Parties agree that this transfer shall constitute a novation within the meaning of Article 1271
et seq. of the French Civil Code and that all rights relating to Security
against the Obligors shall be maintained for the benefit of the New Lender in
accordance with Article 1278 et seq. of the French Code civil.](5)


 






(2)          Include only if New Lender is a UK Non-Bank Lender -
i.e. falls within paragraph (i)(A)(II) of the definition of Qualifying
Lender in Clause 13.1 (Definitions).


 


(3)          Delete as applicable and repeat as applicable — each
New Lender is required to confirm which of these three categories it falls
within pursuant to Clause 13.6 (Lender
Status Confirmation).


 


(4)          This confirmation must be included if the New Lender
holds a passport under the HMRC DT Treaty Passport scheme and, as at the
Transfer Date, wishes that scheme to apply to the Agreement.


 


(5)          Insert in the event that a French Borrower has acceded
to the Agreement on or prior to the date of the Transfer Certificate.


 


113

















 


THE
SCHEDULE


 


Commitment/rights
and obligations to be transferred


 


[insert
relevant details]


 


[Facility Office address, fax number and
attention details for notices and account details for payments.]


 


	
  [Existing Lender]

  	
  [New Lender ]

  
	
   

  	
   

  
	
  By:

  	
  By:

  



 


This Transfer Certificate is accepted by the
Agent and the Transfer Date is confirmed as
[                                  ].


 


Citibank International plc


 


By:


 


114

















 


SCHEDULE
6


 


FORM OF
ASSIGNMENT AGREEMENT


 


To:                                       CITIBANK INTERNATIONAL PLC as Agent and
[                   ]
as Company, for and on behalf of each Obligor


 


From:                           [the Existing Lender]
(the “Existing Lender”) and [the New Lender] (the “New Lender”)


 


Dated:


 


Aon Corporation -
€650,000,000 Facility Agreement

dated [                   ]
2010 (the “Agreement”)


 


1.                                 We refer to the Agreement. This is an Assignment Agreement. Terms
defined in the Agreement have the same meaning in this Assignment Agreement
unless given a different meaning in this Assignment Agreement.


 


2.                                 We refer to Clause 24.6 (Procedure for assignment):


 


(a)                                   The Existing Lender assigns absolutely to the New Lender all the rights
of the Existing Lender under the Agreement and the other Finance Documents
which relate to that portion of the Existing Lender’s Commitments and
participations in Loans under the Agreement as specified in the Schedule.


 


(b)                                  The Existing Lender is released from all the obligations of the Existing
Lender which correspond to that portion of the Existing Lender’s Commitments
and participations in Loans under the Agreement specified in the Schedule.


 


(c)                                   The New Lender becomes a Party as a Lender and is bound by obligations
equivalent to those from which the Existing Lender is released under paragraph (b) above.(6)


 


3.                                 The proposed Transfer Date is
[                   ].


 


4.                                 On the Transfer Date the New Lender becomes Party to the Finance
Documents as a Lender.


 


5.                                 The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 31.2 (Addresses)
are set out in the Schedule.


 


6.                                 The New Lender expressly acknowledges the limitations on the Existing
Lender’s obligations set out in paragraph (c) of Clause 24.4 (Limitation of responsibility of Existing Lenders).


 


7.                                 [The New Lender confirms that the person beneficially entitled to
interest payable to that Lender in respect of an advance under a Finance
Document is either:


 


(a)                                   a company resident in the United Kingdom for United Kingdom tax
purposes; or


 


(b)                                  a partnership each member of which is:


 






(6)          If the Assignment Agreement is used in place of a
Transfer Certificate in order to avoid a novation of rights/obligations for
reasons relevant to a civil jurisdiction, local law advice should be sought to
check the suitability of the Assignment Agreement due to the assumption of
obligations contained in paragraph 2(c). This issue should be addressed at
primary documentation stage.


 


115

















 


(i)                                  a company so resident in the United Kingdom; or


 


(ii)                               a company not so resident in the United Kingdom which carries on a trade
in the United Kingdom through a permanent establishment and which brings into
account in computing its chargeable profits (within the meaning of section 19
of the CTA) the whole of any share of interest payable in respect of that
advance that falls to it by reason of Part 17 of the CTA; or


 


(c)                                   a company not so resident in the United Kingdom which carries on a trade
in the United Kingdom through a permanent establishment and which brings into
account interest payable in respect of that advance in computing the chargeable
profits (within the meaning of section 19 of the CTA) of that company.](7)


 


8.                                 With respect to [insert name of
Borrower(s)], the New Lender confirms, for the benefit of the Agent
and without liability to any Obligor, that it is:


 


(i)                                      [not a Qualifying Lender]


 


(ii)                                   [a Qualifying Lender (other than a Treaty Lender)]


 


(iii)                                [a Treaty Lender].(8)


 


9.                                 [The New Lender confirms (for the benefit of the Agent and without
liability to any Obligor) that it is a Treaty Lender that holds a passport
under the HMRC DT Treaty Passport scheme (reference number [                   ],
so that interest payable to it by borrowers is generally subject to full
exemption from UK withholding tax and notifies the Company that:


 


(i)                                      each Borrower which is a Party as a Borrower as at the Transfer Date
must make an application to HM Revenue & Customs under form DTTP-2
within 30 days of the Transfer Date; and


 


(ii)                                   each Additional Borrower which becomes an Additional Borrower after the
Transfer Date must make an application to HM Revenue & Customs under
form DTTP-2 within 30 days of becoming an Additional Borrower.](9)


 


10.                           The New Lender expressly confirms that it [can/cannot] exempt the Agent
from the restrictions applicable to it pursuant to section 181 of the German
Civil Code and similar restrictions applicable to it pursuant to any other
applicable law as provided for in paragraph (c) of Clause 26.1(Appointment of Agent).


 


[10/11].This
Assignment Agreement acts as notice to the Agent (on behalf of each Finance
Party) and, upon delivery in accordance with Clause 24.7 (Copy of
Transfer Certificate or Assignment  Agreement to
Company), to the Company (on behalf of each Obligor) of the
assignment referred to in this Assignment Agreement.


 






(7)          Include only if New Lender is a UK Non-Bank Lender -
i.e. falls within paragraph (i)(A)(II) of the definition of Qualifying
Lender in Clause 13.1 (Definitions).


 


(8)          Delete as applicable and repeat as applicable — each
New Lender is required to confirm which of these three categories it falls
within pursuant to Clause 13.6 (Lender
Status Confirmation).


 


(9)          This confirmation must be included if the New Lender
holds a passport under the HMRC DT Treaty Passport scheme and, as at the
Transfer Date, wishes that scheme to apply to the Agreement.


 


116

















 


[11/12].This
Assignment Agreement may be executed in any number of counterparts and this has
the same effect as if the signatures on the counterparts were on a single copy
of this Assignment Agreement.


 


[12/13].This
Assignment Agreement and any non-contractual obligations arising out of or in
connection with it are governed by English law.


 


[13/14].This
Assignment Agreement has been entered into on the date stated at the beginning
of this Assignment Agreement.


 


117
















 


THE SCHEDULE


 


Rights to be assigned and
obligations to be released and undertaken


 


[insert
relevant details]


 


[Facility
office address, fax number and attention details for notices and account
details for payments]


 




	
  [Existing Lender]

  	
   

  	
  [New Lender]

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  By:

  






 


This Assignment Agreement is accepted by the
Agent and the Transfer Date is confirmed as
[                   ].


 


Signature of this Assignment Agreement by the
Agent constitutes confirmation by the Agent of receipt of notice of the
assignment referred to herein, which notice the Agent receives on behalf of
each Finance Party.


 


[Agent]


 


By:


 


118

















 


SCHEDULE
7


 


FORM OF
ACCESSION LETTER


 


To:          Citibank
International plc (as Agent)


 


From:      [Subsidiary]
and Aon Corporation


 


Dated:


 


Dear Sirs


Aon
Corporation - €650,000,000 Facility Agreement

dated [                   ]
2010 (the “Agreement”)


 


1.                                 We refer to the Agreement. This is an Accession Letter. Terms defined in
the Agreement have the same meaning in this Accession Letter unless given a different
meaning in this Accession Letter.


 


2.                                 [Subsidiary] agrees to become an Additional Borrower and to be bound by
the terms of the Agreement as an Additional Borrower pursuant to Clause 25.2 (Additional Borrowers) of the
Agreement.  [Subsidiary] is a company
duly incorporated under the laws of [name of
relevant jurisdiction].


 


3.                                 [Subsidiary’s] administrative details are as follows:


 


Address:


 


Fax No:


 


Attention:


 


4.                                 No Default is continuing or would occur as a result of [Subsidiary]
becoming an Additional Borrower.


 


5.                                 This Accession Letter and any non-contractual obligations arising out of
or in connection with it are governed by English law.


 




	
  Aon
  Corporation

  	
   

  	
  [Subsidiary]

  






 


119

















 


SCHEDULE
8


 


FORM OF
RESIGNATION LETTER


 


To:          Citibank
International plc (as Agent)


 


From:      [resigning
Obligor] and Aon Corporation


 


Dated:


 


Dear Sirs


Aon
Corporation - €650,000,000 Facility Agreement

dated [                   ] 2010 (the “Agreement”)


 


1.                                 We refer to the Agreement. This is a Resignation Letter. Terms defined
in the Agreement have the same meaning in this Resignation Letter unless given
a different meaning in this Resignation Letter.


 


2.                                 Pursuant to Clause 25.3 (Resignation
of a Borrower), we request that [resigning
Borrower] be released from its obligations as a Borrower under the
Agreement.


 


3.                                 We confirm that:


 


(a)                               no Default is continuing or would result from the acceptance of this
request; and


 


(b)                              the provisions of Clause 25.3 (Resignation
of a Borrower) are otherwise complied with.


 


4.                                 This Resignation Letter and any non-contractual obligations arising out
of or in connection with it are governed by English law.


 




	
  Aon Corporation

  	
   

  	
  [Subsidiary ]

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  By:

  






 


120

















 


SCHEDULE
9


 


FORM OF
COMPLIANCE CERTIFICATE


 


To:                  Citibank
International plc (as Agent)


 


From:              Aon
Corporation


 


Dated:


 


Dear Sirs


 


Aon
Corporation - €650,000,000 Facility Agreement

dated [                   ] 2010 (the “Agreement”)


 


We refer to the Agreement. This is a Compliance
Certificate. Terms defined in the Agreement have the same meaning in this
Compliance Certificate unless given a different meaning in this Compliance
Certificate.


 


1.                                 [We confirm that no Default is continuing.]*


 


2.                                 We confirm that:


 


(a)                               the ratio of EBITDA to Consolidated Interest Expense for the Relevant
Period ended on [                  ]
was [                  ] to 1


 


(b)                              as at [                  ] the
ratio of Borrowings to EBITDA for the Relevant Period ended on [                  ] was [                  ] to 1.


 


 




	
  Signed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Chief Financial
  Officer][Vice-president]

  	
   

  
	
  [Controller] of Aon
  Corporation

  	
   

  






 


 






*insert applicable
certification language


 


We have reviewed the Agreement and audited
consolidated financial statements of Aon Corporation for the year ended [                ].


 


On the basis of that review and audit, nothing
has come to our attention which would require any modification to the
confirmations in paragraph 3 of the above Compliance Certificate [or which we
know to be a continuing Default].


 






*          If this statement cannot be made, the certificate
should identify any Default that is continuing and the steps, if any, being
taken to remedy it.


 


121

















 


	
    

   	
    

   
	
   

  	
   

  
	
  for
  and on behalf of

  	
   

  



 


name of
auditors of Aon Corporation


 


122

















 


SCHEDULE
10


 


TIMETABLES


 


“D -  “
refers to the number of Business Days before the relevant Utilisation Date/the
first day of the relevant Interest Period.


 


	
   

  	
   

  	
  Loans in euro

  	
   

  	
  Loans in

  sterling

  	
   

  	
  Loans in other

  currencies

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Request for approval as an Optional Currency,
  if required (Clause 4.3 (Conditions
  relating to Optional Currencies))

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  D - 5

  10:00 a.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent notifies the Lenders of the request
  (Clause 4.3 (Conditions relating to
  Optional Currencies))

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  D - 5

  3:00 p.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Responses by Lenders to the request (Clause
  4.3 (Conditions relating to Optional
  Currencies))

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  D - 4 

  1:00 p.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent notifies the Company if a currency is
  approved as an Optional Currency in accordance with Clause 4.3 (Conditions relating to Optional Currencies)

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  D - 4

  5:00 p.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery of a duly completed Utilisation
  Request (Clause 5.1 (Delivery of a
  Utilisation Request))

  	
   

  	
  D - 3

  10:00 a.m.

  	
   

  	
  D - 1

  10:00 a.m.

  	
   

  	
  D - 3

  10:00 a.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent determines (in relation to a
  Utilisation) the Base Currency Amount of the Loan, if required under Clause
  5.4 (Lenders’ participation)
  and notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders’  participation)

  	
   

  	
  D - 3

  11:00 a.m.

  	
   

  	
  D - 1

  11:00 a.m.

  	
   

  	
  D - 3

  11:00 a.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR or EURIBOR is fixed

  	
   

  	
  Quotation Day as of
  11:00 a.m. (Brussels time)

  	
   

  	
  Quotation Day as of
  11:00 a.m.

  	
   

  	
  Quotation Day as of
  11:00 a.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent receives a notification from a Lender
  under Clause 6.2 (Unavailability of a
  currency)

  	
   

  	
  —

  	
   

  	
  Quotation Day as of
  3:00 p.m.

  	
   

  	
  Quotation Day as of
  3:00 p.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Agent gives notice in accordance with Clause
  6.2 (Unavailability of a currency)

  	
   

  	
  —

  	
   

  	
  Quotation Day as of
  5:00 p.m.

  	
   

  	
  Quotation Day as of
  5:00 p.m.

  



 


123

















 


SCHEDULE
11




FORM OF
TEG LETTER


 


To:                  [Insert name of  French Borrower]


 


From:             Citibank International plc (as Agent)


 


Dated:            [                   ]


 


Dear Sirs


Aon France
S.A.  — Aon Corporation - €650,000,000
Facility Agreement 

dated
[                   ]
2010 (the “Agreement”)


 


1.                                 We refer to the Agreement.


 


2.                                 Terms defined in the 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 Agreement.


 


3.                                 We confirm that:


 


(b)                           this is the letter referred to in Clause 10.3 (Taux Effectif Global) of the Agreement;


 


(c)                            you acknowledge that, due to the fact that interest payable under the
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 Facility; and


 


(d)                           for the purposes of articles L.313-4 and L.313-5 of the French Code Monétaire et Financier and articles L.313-1, R.313-1
and R.313-2 of the French Code de la consommation,
and only as an indication based on the assumptions described below, an example
of calculation of the taux effectif global
on the basis of a 365-day year can be given as follows:


 


(i)             for an Interest Period of three months and at €
EURIBOR rate of
[                   ]%
per annum, the taux effectif global for the
Facility would be
[                   ]
per cent. per annum (corresponding to a three-month period rate (taux de période) of
[                   ]
per cent.); and


 


(ii)            for an Interest Period of six months and at £ LIBOR
rate of
[                   ]%
per annum, the taux effectif global for the
Facility would be
[                   ]
per cent. per annum (corresponding to a six-month period rate (taux de période) of
[                   ]
per cent.).


 


The above rates are given on an indicative
basis and on the basis (a) that drawdown for the full amount of the
Facility will be made on [date], (b) that
the EURIBOR/LIBOR rate, expressed as an annual rate, is as fixed on [date] and (c) that repayments occur
at contractual maturity and not earlier and (d) that the Debt Rating Level
of the Company is Level
[                   ].  Such rates shall not be binding on the
Arranger, the Agent or a Lender.


 


124

















 


4.                                This letter is a Finance Document and forms an integral part of the
Agreement.


 


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.


 


 


This letter is designated a Finance Document.


 


Yours faithfully


 


 




	
   

  	
   

  	
   

  
	
  Citibank International plc (as Agent)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  We agree to the above.

  	
   

  	
   

  






 


 




	
   

  	
   

  	
   

  
	
  [Insert
  name of  French Borrower]

  	
   

  	
   

  






 


125

















 


SCHEDULE
12


 


MATERIAL
SUBSIDIARIES


 


Aon Group Inc.


 


Aon Risk Services


 


Aon International Holdings Inc.


 


Aon Consulting Worldwide Inc.


 


Aon Re Americas


 


Aon Benfield Limited


 


Aon Holdings B.V.


 


Aon Holdings International B.V.


 


Aon Holdings UK Limited


 


Aon UK Holdings Intermediaries Limited


 


Aon Southern Europe B.V.


 


Aon Hewitt LLC (acquired 1 October 2010)


 


126

















 


SCHEDULE
13


 


FORM OF
INCREASE CONFIRMATION


 


To:                              Citi International plc as Agent and Aon Corporation as
Company, for and on behalf of each Obligor


 


From:      [the
Increase Lender] (the “Increase Lender”)


 


Dated:


 


Aon
Corporation - €650,000,000 Facility Agreement


dated
[                   ]
2010 (the “Agreement”)


 


1.                                 We refer to the Agreement. This is an Increase Confirmation. Terms
defined in the Agreement have the same meaning in this Increase Confirmation
unless given a different meaning in this Increase Confirmation.


 


2.                                 We refer to Clause 2.2 (Increase) of
the Agreement.


 


3.                                 The Increase Lender agrees to assume and will assume all of the
obligations corresponding to the Commitment specified in the Schedule (the “Relevant Commitment”) as if it was an
Original Lender under the Agreement.


 


4.                                 The proposed date on which the increase in relation to the Increase
Lender and the Relevant Commitment is to take effect (the “Increase
Date”) is [                  
].


 


5.                                 On the Increase Date, the Increase Lender becomes party to the Finance
Documents as a Lender.


 


6.                                 The Facility Office and address, fax number and attention details for
notices to the Increase Lender for the purposes of Clause 31.2 (Addresses) are set out in the Schedule.


 


7.                                 The Increase Lender expressly acknowledges the limitations on the
Lenders’ obligations referred to in paragraph (f) of Clause 2.2 (Increase).


 


8.                                 With respect to [insert name of
Borrower(s)], the Increase Lender confirms, for the benefit of the
Agent and without liability to any Obligor, that it is:


 


(i)                                      [not a Qualifying Lender]


 


(ii)                                   [a Qualifying Lender (other than a Treaty Lender)]


 


(iii)                                [a Treaty Lender].(10)


 


9.                                 [The Increase Lender confirms that the person beneficially entitled to interest
payable to that Lender in respect of an advance under a Finance Document is
either:


 






(10)                      Delete as applicable and repeat as applicable — each
Increase Lender is required to confirm which of these three categories it falls
within pursuant to Clause 13.6 (Lender
Status Confirmation).


 


127

















 


(i)                                      a company resident in the United Kingdom for United Kingdom tax
purposes; or


 


(ii)                                   a partnership each member of which is:


 


(a)                               a company so resident in the United Kingdom; or


 


(b)                              a company not so resident in the United Kingdom which carries on a trade
in the United Kingdom through a permanent establishment and which brings into
account in computing its chargeable profits (within the meaning of section 19
of the CTA) the whole of any share of interest payable in respect of that
advance that falls to it by reason of Part 17 of the CTA; or


 


(iii)           a company not so resident in the United Kingdom which
carries on a trade in the United Kingdom through a permanent establishment and
which brings into account interest payable in respect of that advance in
computing the chargeable profits (within the meaning of section 19 of the CTA)
of that company.](11)


 


10.         [The Increase Lender confirms (for the benefit of the
Agent and without liability to any Obligor) that it is a Treaty Lender that
holds a passport under the HMRC DT Treaty Passport scheme (reference number
[                   ]),
so that interest payable to it by borrowers is generally subject to full
exemption from UK withholding tax and notifies the Company that:


 


(i)             each Borrower which is a Party as a Borrower as at the
Transfer Date must make an application to HM Revenue & Customs under
form DTTP-2 within 30 days of the Transfer Date; and


 


(ii)            each Additional Borrower which becomes an Additional
Borrower after the Transfer Date must make an application to HM Revenue &
Customs under form DTTP-2 within 30 days of becoming an Additional
Borrower.](12)


 


11.                           This Increase Confirmation may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts were on a
single copy of this Increase Confirmation.


 


12.                           This Increase Confirmation and any non-contractual obligations arising
out of or in connection with it are governed by English law.


 


13.                           This Increase Confirmation has been entered into on the date stated at
the beginning of this Increase Confirmation.


 






(11)     Include only if New Lender is a UK Non-Bank Lender i.e. falls within
paragraph (i)(A)(ii) of the definition of Qualifying Lender in Clause 13.1
(Definitions)


 


(12)     This confirmation must be included if the Increase Lender holds a
passport under the HMRC DT Treaty Passport scheme and, as at the Increase Date,
wishes that scheme to apply to the Agreement.


 


128
















 


THE
SCHEDULE


 


Relevant
Commitment/rights and obligations to be assumed by the Increase Lender


 


[Insert
relevant details]


 


[Facility
office address, fax number and attention details for notices and account
details for payments]


 


[Increase
Lender]


 


By:


 


 


This Increase Confirmation is accepted as an
Increase Confirmation for the purposes of the Agreement by the Agent and the
Increase Date is confirmed as [                     ].


 


 


Agent


 


By:


 


129

















 


The Company


 


AON CORPORATION


 


	
  Address:

  	
  Aon Center

  
	
   

  	
  200 East Randolph Street

  
	
   

  	
  4th Floor

  
	
   

  	
  Chicago

  
	
   

  	
  Illinois 60601

  
	
   

  	
  USA

  
	
   

  	
   

  
	
  Fax:

  	
  001 312 381 6060 and 001 312 381 6273

  
	
   

  	
   

  
	
  Attention:

  	
  Corporate Treasurer – Paul Hagy / Assistant
  Treasurer – Ron Buetow / Assistant Treasurer – Katie Rooney

  



 


	
  By:

  	
  /s/ Paul Hagy

  	
   

  
	
   

  	
  Paul Hagy

  	
   

  
	
   

  	
   

  	
   

  
	
  The  Original Borrowers

  	
   

  
	
   

  	
   

  	
   

  
	
  AON LIMITED

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Mark Chessher

  	
   

  
	
   

  	
  Mark
  Chessher

  	
   

  
	
   

  	
   

  	
   

  
	
  AON UK HOLDINGS INTERMEDIARIES LIMITED

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Anthony Simon Allen

  	
   

  
	
   

  	
  A.
  Simon Allen

  	
   

  
	
   

  	
   

  	
   

  
	
  AON BENFIELD LIMITED

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Anthony Simon Allen

  	
   

  
	
   

  	
  A.
  Simon Allen

  	
   

  
	
   

  	
   

  	
   

  
	
  AON HOLDINGS B.V.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  JGM Verhagen

  	
   

  
	
   

  	
  JGM
  Verhagen

  	
   

  
	
   

  	
   

  	
   

  
	
  AON GROUP INTERNATIONAL B.V.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  JGM Verhagen

  	
   

  
	
   

  	
  JGM
  Verhagen

  	
   

  
	
   

  	
   

  	
   

  
	
  AON SOUTHERN EUROPE B.V.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  JGM Verhagen

  	
   

  
	
   

  	
  JGM
  Verhagen

  	
   

  



 


130

















 


	
  AON
  FINANCE LUXEMBOURG S.À.R.L

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Maurice Buyzen

  	
   

  	
   

  
	
   

  	
  Maurice
  Buyzen

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  AON
  FINANCIAL SERVICES LUXEMBOURG S.A.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Maurice Buyzen

  	
   

  	
   

  
	
   

  	
  Maurice
  Buyzen

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The
  Arranger

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  CITIGROUP
  GLOBAL MARKETS LIMITED

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Richard Basham

  	
   

  	
   

  
	
   

  	
  Richard
  Basham

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ING
  BANK N.V.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  C.A.J.A. Oudemans

  	
   

  	
  /s/
  Marlin Lenart

  
	
   

  	
  C.A.J.A. Oudemans

  	
   

  	
  Marlin Lenart

  
	
   

  	
   

  	
   

  	
   

  
	
  BARCLAYS CAPITAL

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  John Atkinson

  	
   

  	
   

  
	
   

  	
  John
  Atkinson

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  The Original Lenders

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  CITIBANK, N.A., London Branch

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Richard Basham

  	
   

  	
   

  
	
   

  	
  Richard
  Basham

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ING BANK N.V.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  C.A.J.A. Oudemans

  	
   

  	
  /s/
  Marlin Lenart

  
	
   

  	
  C.A.J.A. Oudemans

  	
   

  	
  Marlin Lenart

  
	
   

  	
   

  	
   

  	
   

  
	
  BARCLAYS BANK PLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Jonathan Bush

  	
   

  	
   

  
	
   

  	
  Jonathan
  Bush

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  THE ROYAL BANK OF SCOTLAND PLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Biago Curci

  	
   

  	
   

  
	
   

  	
  Biago
  Curci

  	
   

  	
   

  



 


131






 












 


MORGAN STANLEY BANK
INTERNATIONAL LIMITED


 


	
  By:

  	
  /s/
  Martin Luehrs

  	
   

  	
   

  
	
   

  	
  Martin
  Luehrs Authorized Signatory

  	
   

  	
   

  



 


 


CREDIT SUISSE AG, CAYMAN
ISLANDS BRANCH


 


	
  By:

  	
  /s/
  Jay Chall

  	
   

  	
  /s/
  Kathrin Marti

  
	
   

  	
  Jay
  Chall, Director

  	
   

  	
  Kathrin
  Marti, Assistant Vice President

  



 


 


ANZ BANK (EUROPE) LIMITED


 


	
  By:

  	
  /s/ A. J. Sainsbury

  	
   

  	
   

  
	
   

  	
  A.
  J. Sainsbury

  	
   

  	
   

  



 


 


BANC OF AMERICA SECURITIES
LIMITED


 


	
  By:

  	
  /s/
  Ashley Gill 

  	
   

  	
   

  
	
   

  	
  Ashley
  Gill 

  	
   

  	
   

  



 


 


THE GOVERNOR AND COMPANY OF
THE BANK OF IRELAND


 


	
  By:

  	
  /s/
  Philip Greene 

  	
   

  	
  /s/
  Kieran Rockett

  
	
   

  	
  Philip
  Greene 

  	
   

  	
  Kieran
  Rockett

  



 


 


BANK OF MONTREAL, LONDON
BRANCH (Facility Office for the purposes of the English Borrowers pursuant to
Clause 5.5 (Designated Entities))


 


	
  By:

  	
  /s/
  A.L. Ebdon 

  	
   

  	
  /s/
  Christophe Sailland

  
	
   

  	
  A.L.
  Ebdon 

  	
   

  	
  Christophe
  Sailland

  



 


 


BANK OF MONTREAL IRELAND
P.L.C. (Facility Office for the purposes of the Dutch Borrowers and the
Luxembourg Borrowers pursuant to Clause 5.5 (Designated
Entities))


 


	
  By:

  	
  /s/
  Neil Ward

  	
   

  	
  /s/
  Finbarr Farrell

  
	
   

  	
  Neil
  Ward

  	
   

  	
  Finbarr
  Farrell 

  
	
   

  	
  General
  Manager 

  	
   

  	
  Risk
  & Credit Manager

  
	
   

  	
  Bank
  of Montreal Ireland p.l.c.

  	
   

  	
  Bank
  of Montreal Ireland p.l.c.

  



 


 


COMMERZBANK
AKTIENGESELLSCHAFT, FILIALE LUXEMBURG


 


	
  By:

  	
  /s/
  Bianca Bahn

  	
   

  	
  /s/
  Mert Yilmaz

  
	
   

  	
  Bianca
  Bahn

  	
   

  	
  Mert
  Yilmaz

  



 


 


DEUTSCHE BANK AG, LONDON
BRANCH


 


	
  By:

  	
  /s/
  Michael Starmer-Smith

  	
   

  	
  /s/
  David Garcia-Capel

  
	
   

  	
  Michael
  Starmer-Smith

  	
   

  	
  David
  Garcia-Capel

  



 


 


LLOYDS TSB BANK PLC


 


	
  By:

  	
  /s/
  Mark Jackson

  	
   

  	
   

  
	
   

  	
  Mark
  Jackson

  	
   

  	
   

  



 


132

















 


NATIONAL AUSTRALIA BANK
LIMITED ABN 12 004 044 937


 


	
  By:

  	
  /s/
  Helen Hsu 

  	
   

  	
   

  
	
   

  	
  Helen
  Hsu 

  	
   

  	
   

  
	
   

  	
  Director

  	
   

  	
   

  



 


 


NATIXIS


 


	
  By:

  	
  /s/
  Joël Leroy

  	
   

  	
  /s/
  J. Terren

  
	
   

  	
  Joël
  Leroy

  	
   

  	
  (Terren)

  



 


 


STANDARD CHARTERED BANK


 


	
  By:

  	
  /s/
  James Conti 

  	
   

  	
  /s/
  Robert K. Reddington

  
	
   

  	
  James
  Conti 

  	
   

  	
  Robert
  K. Reddington

  
	
   

  	
  Director
  A2226

  	
   

  	
  Credit
  Documentation Manager

  
	
   

  	
   

  	
   

  	
  Credit
  Documentation Unit, WB Legal-Americas

  



 


 


UBS LIMITED


 


	
  By:

  	
  /s/
  J. Campbell

  	
   

  	
  /s/
  Sharon Canham

  
	
   

  	
  J.
  Campbell

  	
   

  	
  Sharon
  Canham

  
	
   

  	
  Director

  	
   

  	
  Executive
  Director

  



 


 


UNICREDIT BANK AG, LONDON
BRANCH


 


	
  By:

  	
  /s/
  Brian Lawrence

  	
   

  	
  /s/
  Stanley Lau

  
	
   

  	
  Brian
  Lawrence

  	
   

  	
  Stanley
  Lau

  
	
   

  	
  Director

  	
   

  	
  Authorized
  Signatory

  



 


 


The Agent


 


CITIBANK INTERNATIONAL PLC


 


	
  Address:

  	
  Citi Group Centre

  Maildrop 0565

  5th Floor

  25 Canada Square

  Canary Wharf

  London E14 5LB

  
	
   

  	
   

  
	
  Fax:

  	
  + 44 208636 3824

  
	
   

  	
   

  
	
  Attention:

  	
  Loans Agency

  



 


	
  By:

  	
  /s/
  John Summers

  	
   

  	
   

  
	
   

  	
  John
  Summers

  	
   

  	
   

  



 


133