Term Loan Agreement

TERM LOAN AGREEMENT Dated as of November 20, 2015 Among TRINITY ACQUISITION LIMITED, as Borrower, WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY, as Parent, BARCLAYS BANK PLC, as Administrative Agent, and the Other Lenders Party Hereto SUNTRUST BANK, as ...

Exhibit 10.1

EXECUTION VERSION

 

 

TERM LOAN AGREEMENT

Dated as of November 20, 2015

among

TRINITY ACQUISITION LIMITED,

as Borrower,

WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY,

as Parent,

BARCLAYS BANK PLC,

as Administrative Agent,

and

The Other Lenders Party Hereto

SUNTRUST BANK,

as Syndication Agent

BARCLAYS BANK PLC, SUNTRUST ROBINSON HUMPHREY, INC., J.P. MORGAN SECURITIES LLC, LLOYDS SECURITIES INC., WELLS FARGO SECURITIES, LLC and HSBC BANK PLC

as Joint Lead Arrangers and Joint Bookrunners

and

J.P. MORGAN SECURITIES LLC, LLOYDS SECURITIES INC., WELLS FARGO BANK, N.A., BANK OF TOKYO-MITSUBISHI UFJ, LTD., BANK OF MONTREAL, CITIBANK, N.A., HSBC BANK PLC, M&T BANK and PNC BANK, N.A.

as Documentation Agents

 

 


TABLE OF CONTENTS

 

         Page
ARTICLE I.  

    DEFINITIONS AND ACCOUNTING TERMS

   1

1.01

 

Defined Terms

   1

1.02

 

Other Interpretive Provisions

   26

1.03

 

Accounting Terms

   27

1.04

 

Rounding

   28

1.05

 

Exchange Rates; Currency Equivalents

   28

1.06

 

[Intentionally Omitted]

   28

1.07

 

Change of Currency

   28

1.08

 

Times of Day

   28
ARTICLE II.  

    THE COMMITMENTS AND BORROWINGS

   29

2.01

 

The Loans

   29

2.02

 

Borrowings, Conversions and Continuations of Loans

   29

2.03

 

[Intentionally Omitted]

   30

2.04

 

[Intentionally Omitted]

   30

2.05

 

Prepayments and Mandatory Commitment Reductions

   30

2.06

 

Optional Termination or Reduction of Commitments

   32

2.07

 

Repayment of Loans

   32

2.08

 

Interest

   32

2.09

 

Fees

   32

2.10

 

Computation of Interest and Fees

   33

2.11

 

Evidence of Debt

   33

2.12

 

Payments Generally; Administrative Agent’s Clawback

   33

2.13

 

Sharing of Payments by Lenders

   35

2.14

 

[Intentionally Omitted]

   35

2.15

 

[Intentionally Omitted]

   36

2.16

 

Defaulting Lenders

   36
ARTICLE III.  

    TAXES, YIELD PROTECTION AND ILLEGALITY

   37

3.01

 

Taxes

   37

3.02

 

Illegality

   43

3.03

 

Inability to Determine Rates

   43

3.04

 

Increased Costs; Reserves on Eurocurrency Rate Loans

   44

3.05

 

Compensation for Losses

   45

3.06

 

Mitigation Obligations; Replacement of Lenders

   46

3.07

 

Survival

   46
ARTICLE IV.  

    CONDITIONS PRECEDENT

   46

4.01

 

Conditions to Effectiveness

   46

4.02

 

Conditions to Borrowing of the Tranche A Term Loans

   48

4.03

 

Conditions to Borrowing of the Tranche B Term Loans

   48

4.04

 

 

Conditions to all Borrowings

 

  

48

 

 

i


ARTICLE V.  

    REPRESENTATIONS AND WARRANTIES

   49

5.01

 

Organization; Powers

   49

5.02

 

Authorization; Enforceability

   49

5.03

 

Governmental Approvals; No Conflicts

   49

5.04

 

Financial Condition; No Material Adverse Change

   49

5.05

 

Properties

   50

5.06

 

Litigation and Environmental Matters

   50

5.07

 

Compliance with Laws; Absence of Default

   50

5.08

 

Investment Company Status

   50

5.09

 

Taxes

   50

5.10

 

ERISA

   50

5.11

 

Disclosure

   51

5.12

 

Subsidiaries

   51

5.13

 

Solvency

   51

5.14

 

Use of Proceeds

   52

5.15

 

Pari Passu

   52

5.16

 

Deduction of Tax

   52

5.17

 

OFAC; USA PATRIOT Act; FCPA; UK Bribery Act

   52
ARTICLE VI.  

    AFFIRMATIVE COVENANTS

   53

6.01

 

Financial Statements; Ratings Change and Other Information

   53

6.02

 

Notices of Material Events

   55

6.03

 

Existence; Conduct of Business

   55

6.04

 

Payment of Taxes

   56

6.05

 

Maintenance of Properties; Insurance

   56

6.06

 

Books and Records; Inspection Rights

   56

6.07

 

Compliance with Laws

   56

6.08

 

Use of Proceeds

   56

6.09

 

Gras Savoye Acquisition

   57
ARTICLE VII.  

    NEGATIVE COVENANTS

   57

7.01

 

Subsidiary Indebtedness

   57

7.02

 

Liens

   58

7.03

 

Investments

   59

7.04

 

Fundamental Changes

   59

7.05

 

Asset Sales

   60

7.06

 

Sale and Leaseback Transactions

   61

7.07

 

Restricted Payments

   61

7.08

 

Financial Covenants

   61

7.09

 

Amendments to the Towers Watson Facility

   62

7.10

 

Sanctions; Use of Proceeds

   62
ARTICLE VIII.  

    EVENTS OF DEFAULT AND REMEDIES

   62

8.01

 

Events of Default

   62

8.02

 

Remedies Upon Event of Default

   64

8.03

 

 

Application of Funds

 

  

64

 

 

ii


ARTICLE IX.  

    ADMINISTRATIVE AGENT

   65

9.01

 

Appointment and Authorization of Agents

   65

9.02

 

Rights as a Lender

   65

9.03

 

Exculpatory Provisions

   65

9.04

 

Reliance by Administrative Agent

   66

9.05

 

Delegation of Duties

   66

9.06

 

Resignation of Administrative Agent

   66

9.07

 

Non-Reliance on Administrative Agent and Other Lenders

   67

9.08

 

Duties of Other Agents

   67

9.09

 

Administrative Agent May File Proofs of Claim

   67

9.10

 

Withholding

   68

9.11

 

Guaranty Matters

   68

9.12

 

Survival

   68
ARTICLE X.  

    MISCELLANEOUS

   68

10.01

 

Amendments, Etc.

   68

10.02

 

Notices; Effectiveness; Electronic Communications

   70

10.03

 

No Waiver; Cumulative Remedies; Enforcement

   72

10.04

 

Expenses; Indemnity; Damage Waiver

   72

10.05

 

Payments Set Aside

   74

10.06

 

Successors and Assigns

   74

10.07

 

Treatment of Certain Information; Confidentiality

   79

10.08

 

Right of Setoff

   80

10.09

 

Interest Rate Limitation

   80

10.10

 

Counterparts; Integration; Effectiveness

   81

10.11

 

Survival of Representations and Warranties

   81

10.12

 

Severability

   81

10.13

 

Replacement of Lenders

   81

10.14

 

Governing Law; Jurisdiction; Etc.

   82

10.15

 

Waiver of Jury Trial

   83

10.16

 

No Advisory or Fiduciary Responsibility

   83

10.17

 

Electronic Execution of Assignments and Certain Other Documents

   84

10.18

 

USA PATRIOT Act

   84

10.19

 

Judgment Currency

   84
SIGNATURES      S-1

SCHEDULES

 

1.01(b)    Guarantors
2.01    Commitments and Applicable Percentages
3.01    Status of Lenders
3.01(i)    HMRC DT Treaty Passport Scheme Lenders
3.01(j)    UK Non-Bank Lenders
5.06    Disclosed Matters
5.12    Subsidiaries
7.02    Existing Liens
7.06    Specified Properties
10.02    Administrative Agent’s Office; Certain Addresses for Notices

 

iii


EXHIBITS

Form of

 

A    Borrowing Request
B    Note
C    Compliance Certificate
D-1    Assignment and Assumption
D-2    Administrative Questionnaire
E    Guaranty Agreement
F    Prepayment Notice
G    Gras Savoye Acquisition Certificate
H-1    Opinion of Weil, Gotshal & Manges LLP
H-2    Opinion of Matheson Ormsby Prentice
H-3    Opinion of Weil, Gotshal & Manges
H-4    Opinion of Baker & McKenzie Amsterdam N.V.
H-5    Opinion of Appleby (Bermuda) Limited

 

iv


TERM LOAN AGREEMENT

This TERM LOAN AGREEMENT (this “Agreement”) is entered into as of November 20, 2015, among TRINITY ACQUISITION LIMITED, a company formed under the laws of England and Wales having company number 03588435 (the “Borrower”), WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY, a company incorporated under the laws of Ireland having company number 475616 (the “Parent”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and BARCLAYS BANK PLC, as Administrative Agent.

PRELIMINARY STATEMENTS:

The Parent and the Borrower have requested that the Lenders extend credit to the Borrower in the form of delayed draw Term Loans (a) in an aggregate principal amount not in excess of €550,000,000 under the Tranche A Facility and (b) in an aggregate principal amount not in excess of $400,000,000 under the Tranche B Facility, in each case, to be made at any time on or after the Effective Date during the Availability Period for such Facility. The proceeds of the Tranche A Facility are to be used solely to fund the acquisition of the remaining Equity Interests of Gras Savoye not owned by the Parent and its Subsidiaries, including to repay certain Indebtedness of Gras Savoye and its Subsidiaries and the proceeds of the Tranche B Facility are to be used solely to (i) to repay certain existing Indebtedness of Towers Watson and its Subsidiaries, (ii) to pay the costs and expenses incurred by the Borrower in connection with the transactions contemplated by this Agreement and (iii) for working capital, capital expenditures, other permitted acquisitions and other lawful corporate purposes of the Parent and its Subsidiaries.

In furtherance of the foregoing, the Lenders are willing to make available the Facilities on the terms and subject to the conditions set forth herein. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS

1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: “Acquired EBITDA” means, with respect to any Acquired Entity or Business or any Sold Entity or Business (any of the foregoing, a “Pro Forma Entity”) for any period, the portion of Consolidated Net Income for such period attributable to such Pro Forma Entity plus (a) without duplication and to the extent deducted in determining such portion of Consolidated Net Income for such Pro Forma Entity, the sum of (i) consolidated interest expense for such period, (ii) consolidated income tax expense for such period, (iii) all amounts attributable to depreciation and amortization for such period, (iv) any extraordinary losses and non-recurring charges for such period, (v) any non-cash charges (including the non-cash portion of pension expense) for such period, (vi) losses on asset sales outside the ordinary course of business for such period, (vii) restructuring charges or provisions for such period, (viii) any expenses or charges incurred in connection with any issuance of debt or equity securities for such period and (ix) any deduction for minority interest expense for such period with respect to a Subsidiary that is not wholly owned by the Parent (provided that (A) the amount added to Consolidated Net Income pursuant to this subclause (ix) for any period shall not exceed 5% of the amount of Consolidated EBITDA computed in accordance with this definition for such period and (B) the Indebtedness and interest expense of such Subsidiary are included in the calculation of Indebtedness and Consolidated Cash Interest Expense to the same extent as would be required if such Subsidiary were wholly owned by the Parent), and minus (b) without duplication and to the extent included in determining such portion of Consolidated Net Income (i) any extraordinary gains and non-recurring gains for such period, (ii) any non-cash gains for such period and (iii) any gains on asset sales outside the ordinary course of business for such period, all determined on a consolidated basis for such Pro Forma Entity in accordance with GAAP.


Acquired Entity or Business” has the meaning assigned to such term in the definition of “Consolidated EBITDA”.

Administrative Agent” means Barclays in its capacity as administrative agent under any of the Loan Documents, or any successor thereof in such capacity.

Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

Administrative Questionnaire” means an Administrative Questionnaire in substantially the form of Exhibit D-2 or any other form approved by the Administrative Agent.

Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. Notwithstanding the foregoing, in relation to The Royal Bank of Scotland plc, the term “Affiliate” shall not include (a) 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 (b) 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.

Agency Fee Letter” means the agency fee letter agreement dated as of October 15, 2015, among the Parent, the Borrower and Barclays.

Agent-Related Persons” means each Agent together with its Related Persons.

Agents” means, collectively, the Administrative Agent, each Arranger, each Bookrunner, the Syndication Agent and the Documentation Agents.

Aggregate Commitments” means the aggregate amount of the Commitments of all the Lenders. The Aggregate Commitments in respect of the Tranche A Facility on the Effective Date are €550,000,000 and the Aggregate Commitments in respect of the Tranche B Facility on the Effective Date are $400,000,000.

Agreement” means this Term Loan Agreement.

Agreement Currency” has the meaning specified in Section 10.19.

Applicable Percentage” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Tranche A Facility or the Tranche B Facility, as applicable, represented by (i) at any time prior to the Borrowing of the Term Loans under such Facility, such Lender’s Commitment under such Facility at such time subject to adjustment as provided in Section 2.16 and (ii) thereafter, the principal amount of Term Loans under such Facility held by such Lender at such time. If the Aggregate Commitments have been terminated pursuant to Section 8.02 or have expired, then the Applicable Percentage of each Lender under each Facility shall be determined based on the Applicable Percentage of such Lender for such Facility most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender for each Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto.

 

2


Applicable Rate” means, from time to time, the following percentages per annum, based upon the Debt Rating as set forth below:

 

Applicable Rate

 

Pricing Level

   Debt Ratings
S&P/Moody’s
   Ticking Fee     Eurocurrency
Rate
    Base
Rate
 

1

   BBB+/Baa1 or better      0.200     1.250     0.250

2

   BBB/Baa2      0.225     1.375     0.375

3

   BBB-/Baa3      0.250     1.500     0.500

4

   BB+/Ba1      0.300     1.750     0.750

5

   BB/Ba2 or worse      0.350     2.000     1.000

provided, however, that on the date that is 180 days after the Initial Funding Date, 0.50% will be added to the Eurocurrency Rate and the Base Rate at each Pricing Level to calculate the Applicable Rate.

Debt Rating” means, as of any date of determination, the rating as determined by either S&P or Moody’s (collectively, the “Debt Ratings”), as applicable, of the Parent’s guaranteed, senior unsecured long-term debt; provided that (a) if the respective Debt Ratings issued by foregoing rating agencies differ by one level, then the Pricing Level for the higher of such Debt Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt Rating for Pricing Level 5 being the lowest); (b) if there is a split in Debt Ratings of more than one level, then the Pricing Level that is one level lower than the Pricing Level of the higher Debt Rating shall apply; (c) if the Parent has only one Debt Rating, the Pricing Level for such Debt Rating shall apply; (d) if the Parent does not have any Debt Rating (other than as a result of both S&P and Moody’s ceasing to be engaged in the business of rating debt, in which case the provisions of the next sentence shall apply), then Pricing Level 5 will apply. If either the rating system of S&P or Moody’s shall change in a manner that directly and materially impacts the pricing grid set forth above, or if both S&P and Moody’s shall cease to be engaged in the business of rating debt, then in either such case the Parent, the Borrower and the Lenders shall negotiate in good faith to amend the references to Debt Ratings in the table above to reflect such changed rating system or to replace such rating system with an alternative measurement scheme, as applicable, and pending the effectiveness of any such amendment, the ratings of such rating agency (or both rating agencies, if applicable) most recently in effect prior to such change or cessation shall be employed in determining the Applicable Rate.

Each change in the Applicable Rate resulting from a publicly announced change in the Debt Rating (other than as a result of a change in the rating system of S&P or Moody’s) shall be effective during the period commencing on the date of the public announcement thereof, irrespective of when notice of such change shall have been furnished by the Parent or Borrower to the Administrative Agent and the Lenders pursuant to Section 6.01(f) or otherwise, and ending on the date immediately preceding the effective date of the next such change.

Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Arranger Fee Letter” means the arranger fee letter agreement dated as of October 15, 2015, among the Parent, the Borrower, Barclays, STRH and SunTrust.

 

3


Arrangers” means Barclays, STRH, JPM, WFS, Lloyds and HSBC, each in its capacity as a joint lead arranger of the Facilities.

Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit D-1 or any other form approved by the Administrative Agent.

Attributable Indebtedness” in respect of a sale and leaseback transaction means, as of the time of determination, the present value (discounted at the implicit interest rate for such sale and leaseback transaction, compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale and leaseback transaction (including any period for which such lease has been extended).

Audited Financial Statements” means the audited consolidated balance sheet of the Parent and its Subsidiaries for the fiscal year ended December 31, 2014, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Parent and its Subsidiaries, including the notes thereto.

Availability Period” means, with respect to any Tranche, the period from and including the Effective Date to the earliest of (a), with respect to the Tranche A Facility, February 28, 2016, or with respect to the Tranche B Facility, March 31, 2016, (b) the date of termination of the Aggregate Commitments under the applicable Tranche pursuant to Sections 2.05 or 2.06 and (c) the date of termination of the commitment of each Lender to make Loans pursuant to Section 8.02.

Bank of Tokyo” means the Bank of Tokyo-Mitsubishi UFJ, Ltd.

Barclays” means Barclays Bank PLC and its successors.

Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%; (b) the Prime Rate in effect on such day; and (c) the Eurocurrency Rate for an Interest Period of one month plus 1.00%. The “Prime Rate” is a rate set by Barclays based upon various factors including Barclays’ costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such Prime Rate announced by Barclays shall take effect at the opening of business on the day specified in the public announcement of such change.

Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.

BMO” means the Bank of Montreal.

Bookrunners” means Barclays, STRH, JPM, WFS and Lloyds and HSBC, each in its capacity as a joint bookrunner.

Borrower” has the meaning specified in the introductory paragraph hereto.

Borrowing” means a borrowing of Term Loans.

 

4


Borrowing Request” means a request with respect to (a) each Borrowing of the Term Loans, (b) a conversion of Term Loans from one Type to the other or (c) a continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.

Business Day” means (i) any day excluding Saturday, Sunday or any other day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by Law to close, (ii) with respect to all notices, determinations, fundings and payments in connection with the Eurocurrency Rate or any Eurocurrency Rate Loans denominated in Dollars, the term “Business Day” shall mean any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market and (iii) with respect to all notices, determinations, fundings and payments in connection with any Eurocurrency Rate Loans denominated in Euro, the term “Business Day” shall mean any day which is a Business Day described in clause (i) and which is also a TARGET Day.

Capital Lease Obligations” of any Person means, subject to Section 1.03(b), the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital or finance leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

Change in Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof) of Equity Interests representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests of the Parent; (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Parent by Persons who were neither (i) nominated by the board of directors of the Borrower or the Parent nor (ii) appointed by directors so nominated; (c) the failure of the Parent to own, directly or indirectly, at least 80% of the outstanding Equity Interests of WNA; (d) the failure of the Parent to own, directly or indirectly, at least 80% of the outstanding Equity Interests of the Borrower; or (e) the failure of the Parent to own, directly or indirectly, at least 80% of the outstanding Equity Interests of WGL.

Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority; or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Citibank” means Citibank, N.A.

Code” means the Internal Revenue Code of 1986.

Commitment” means, as to each Lender at any given time, its obligation hereunder to make Loans to the Borrower.

 

5


Compliance Certificate” means a certificate substantially in the form of Exhibit C.

Consolidated Cash Interest Coverage Ratio” means, on any date, the ratio of (a) Consolidated EBITDA for the period of four consecutive fiscal quarters of the Parent ended on such date to (b) Consolidated Cash Interest Expense for such period.

Consolidated Cash Interest Expense” means, for any period, for the Parent and its Subsidiaries, on a consolidated basis, all cash interest, premium payments, debt discount, fees, charges and related cash expenses of the Parent and its Subsidiaries in connection with borrowed money or in connection with the deferred purchase price of assets and net cash costs under Swap Contracts in respect of interest rates to the extent that such net cash costs are allocable to such period, in each case to the extent treated as interest in accordance with GAAP, minus cash interest income of the Parent and its Subsidiaries on a consolidated basis for such period (including all net cash gains under Swap Contracts in respect of interest rates to the extent that such net cash gains are allocable to such period).

Consolidated EBITDA” means, for any period, Consolidated Net Income for such period plus (a) without duplication and to the extent deducted in determining Consolidated Net Income, the sum of (i) consolidated interest expense for such period, (ii) consolidated income tax expense for such period, (iii) all amounts attributable to depreciation and amortization for such period, (iv) any extraordinary losses and nonrecurring charges for such period, (v) any non-cash charges (including the non-cash portion of pension expense) for such period, (vi) losses on asset sales outside the ordinary course of business for such period, (vii) restructuring charges or provisions for such period, (viii) any costs incurred in connection with acquisitions (including in connection with closure and/or consolidation of facilities) in an aggregate amount with respect to any such acquisition not to exceed 5% of the aggregate consideration for such acquisition, (ix) any expenses or charges incurred in connection with any issuance of debt or equity securities for such period and (x) any deduction for minority interest expense for such period with respect to a Subsidiary that is not wholly owned by the Parent (provided that (A) the amount added to Consolidated Net Income pursuant to this subclause (x) for any period shall not exceed 5% of the amount of Consolidated EBITDA computed in accordance with this definition for such period and (B) the Indebtedness and interest expense of such Subsidiary are included in the calculation of Indebtedness and Consolidated Cash Interest Expense to the same extent as would be required if such Subsidiary were wholly owned by the Parent) and minus (b) without duplication and to the extent included in determining such Consolidated Net Income, (i) any extraordinary gains and non-recurring gains for such period, (ii) any non-cash gains for such period and (iii) any gains on asset sales outside the ordinary course of business for such period, all determined on a consolidated basis in accordance with GAAP; provided that for purposes of determining the Consolidated Leverage Ratio only, (A) there shall be included in determining the Consolidated EBITDA for any period the Acquired EBITDA of any Person, property, business or asset acquired outside the ordinary course of business during such period by the Parent or a Subsidiary, to the extent not subsequently sold, transferred or otherwise disposed of by the Parent or a Subsidiary during such period (each such Person, property, business or asset acquired and not subsequently so disposed of, an “Acquired Entity or Business”), based on the actual Acquired EBITDA of such Acquired Entity or Business for such period (including the portion thereof occurring prior to such acquisition) and (B) there shall be excluded in determining Consolidated EBITDA for any period the Acquired EBITDA of any Person, property, business or asset sold, transferred or otherwise disposed of outside the ordinary course of business by the Parent or any Subsidiary during such period (each such Person, property, business or asset so sold or disposed of, a “Sold Entity or Business”) based on the actual Acquired EBITDA of such Sold Entity or Business for such period (including the portion thereof occurring prior to such sale, transfer or disposition).

Consolidated Funded Indebtedness” means, as of any date of determination, the sum of (a) the aggregate principal amount of Indebtedness of the Parent and its Subsidiaries outstanding as of such date,

 

6


in the amount that would be reflected on the balance sheet of the Parent and its Subsidiaries prepared as of such date on a consolidated basis in accordance with GAAP, excluding the principal amount of any Existing Senior Notes following the issuance of any New Senior Notes, the proceeds of which are to be used to redeem, repurchase or otherwise retire any such Existing Senior Notes, plus (b) the aggregate principal amount of obligations for borrowed money that are outstanding as of such date of Persons other than the Parent and its Subsidiaries, to the extent Guaranteed by the Parent or any of its Subsidiaries.

Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.

Consolidated Net Income” means, for any period, the net income or loss of the Parent and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP; provided that (i) there shall be excluded from such net income or loss the income or loss of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the Parent or any Subsidiary or the date that such Person’s assets are acquired by the Parent or any Subsidiary and (ii) there shall be included in such net income or loss the net income of any Person that is not a Subsidiary of the Parent and its Subsidiaries (including, for the avoidance of doubt, joint venture and other minority Investments (including the minority Investment in Gras Savoye, for so long as it is a minority Investment)) to the extent of the amount of dividends or distributions or other payments (including any ordinary course dividends, distributions or other payments) actually paid to the Parent or any Subsidiary by such Person in respect of such period.

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

Cost of Funds Rate” means, as of any day, the rate of interest determined by the Administrative Agent to be representative of its or the applicable Lenders’ cost of funds, as applicable, to extend or maintain credit under this Agreement on such day.

Covenant Reset Request” has the meaning specified in Section 7.08(b).

Covenant Reset Period” means the four fiscal quarter period following a Covenant Reset Request by the Borrower (including, for the avoidance of doubt, the first fiscal quarter for which the Covenant Reset Request was made); provided, however, that if the Gras Savoye Acquisition occurs during any Covenant Reset Period, such Covenant Reset Period shall be extended an additional four fiscal quarters from the commencement of such Covenant Reset Period, for an aggregate period of eight fiscal quarters.

CTA” means the United Kingdom Corporation Tax Act 2009.

Debt Issuance” means the incurrence of Indebtedness of the type specified in clauses (a) and (b) of the definition of “Indebtedness” by the Parent or its Subsidiaries, other than, without duplication, (i) all Indebtedness outstanding on the Effective Date and Refinancing Indebtedness in respect thereof, (ii) Indebtedness of Subsidiaries that are not Loan Parties and that is permitted by Section 7.01, (iii) credit extensions under the Existing Credit Agreement (including pursuant to extensions, modifications or Refinancing Indebtedness in respect thereof), (iv) cash pooling arrangements entered into in the ordinary course of business and (v) other Indebtedness in an aggregate principal amount up to $50,000,000 minus any Refinancing Indebtedness of the type described in clause (a)(iii) of the definition thereof.

 

7


Debt Rating” has the meaning specified in the definition of “Applicable Rate.”

Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, administration, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would, unless cured or waived, become an Event of Default.

Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum; provided that with respect to a Eurocurrency Rate Loan (or a Loan bearing interest at the Cost of Funds Rate), the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum.

Defaulting Lender” means, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or (ii) pay to the Administrative Agent or any Lender any other amount required to be paid by it hereunder within two Business Days of the date when due; (b) has notified the Borrower or the Administrative Agent in writing that it does not intend to comply with such Lender’s funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lenders’ obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied); (c) has failed, within two Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower); or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other Federal or state regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in such Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) upon delivery of written notice of such determination to the Borrower and each Lender.

Direction” has the meaning specified in Section 3.01(h).

 

8


Disclosed Matters” means the actions, suits and proceedings and the environmental matters disclosed in Schedule 5.06.

Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

Documentation Agents” means, collectively, JPM, Wells, Lloyds, Bank of Tokyo, BMO, Citibank, HSBC, M&T and PNC, each in its capacity as co-documentation agent.

Dollar” and “$” mean lawful money of the United States.

Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in Euros or any other applicable currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Euros or other applicable currency.

Effective Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).

EMU” means the economic and monetary union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.

EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to Hazardous Materials, substances or wastes, air emissions and discharges to waste or public systems.

Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Parent, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in)

 

9


such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

Equity Issuance” means the issuance by the Parent or any Subsidiary of its Equity Interests (including, equity-linked securities) to any Person other than (a) pursuant to any stock option or other compensation plans and grants to employees made in the ordinary course of business, (b) to the Parent or any of its Subsidiaries, (c) directors’ qualifying shares and/or other nominal amounts required to be held by persons other than the Parent or its Subsidiaries under any applicable Laws, (d) to any Person holding Equity Interests in a non-wholly owned Subsidiary and (e) in connection with the Towers Watson Restructuring Transactions. The term “Equity Issuance” shall not include any Disposition or Debt Issuance.

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

ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Parent, is treated as a single employer under Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the failure to meet the minimum funding standard of Sections 412 and 430 of the Code or Sections 302 and 303 of ERISA, in each case, whether or not waived; (c) a withdrawal by the Parent or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (d) a complete or partial withdrawal by the Parent or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (e) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (f) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (g) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Parent or any ERISA Affiliate.

Euro”, “EUR” and “” mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

Eurocurrency Rate” means for any Interest Period as to any Eurocurrency Rate Loan, (i) for Loans denominated in Dollars, the rate per annum of the offered rate which appears on the page of the Reuters Screen which displays the London interbank offered rate administered by ICE Benchmark Administration Limited (such page currently being the LIBOR01 page) (the “LIBO Rate”) for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars, determined as of approximately 11:00 a.m. (London, England time), two Business Days prior to the commencement of such Interest Period, (ii) for Loans denominated in Euros, the rate per annum of the offered rate which appears on the page of the Reuters Screen which displays the Euro interbank offered rate administered by the Banking Federation of the European Union (such page currently being the EURIBOR01 page) (the “EURIBOR Rate”) for deposits (for delivery on the first day of such Interest

 

10


Period) with a term equivalent to such Interest Period in Euros determined as of approximately 11:00 a.m., (London, England time), two Business Days prior to the commencement of such Interest Period, (iii) in the event the rate referenced in the preceding clauses (i) or (ii), as the case may be, does not appear on such page or service or if such page or service shall cease to be available, the rate reasonably determined by the Administrative Agent to be the offered rate on such other page or other service which displays the LIBO Rate or EURIBOR Rate, as applicable, for deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in Dollars or Euros, as applicable, determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period or (iv) in the event the rates referenced in the preceding clauses (i), (ii) and (iii) are not available, the rate per annum determined by the Administrative Agent to be the average offered quotation rate by major banks in the London interbank market to Barclays for deposits (for delivery on the first day of the relevant period) in Dollars or Euros, as applicable, of amounts in same day funds comparable to the principal amount of the Eurocurrency Rate Loan for which the Eurocurrency Rate is then being determined with maturities comparable to such Interest Period as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period; provided that (a) if LIBO Rates are quoted under either of the preceding clauses (i) or (iii), but there is no such quotation for the Interest Period elected, the LIBO Rate shall be equal to the Interpolated Rate or (b) if EURIBOR Rates are quoted under either of the preceding clauses (ii) or (iii), but there is no such quotation for the Interest Period elected, the EURIBOR Rate shall be equal to the Interpolated Rate; and provided, further, that if any such rate determined pursuant to the preceding clauses (i), (ii), (iii) or (iv) is below zero, the Eurocurrency Rate will be deemed to be zero.

Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated in Dollars or in Euros. All Loans denominated in Euros must be Eurocurrency Rate Loans.

Event of Default” has the meaning specified in Section 8.01.

Excluded Swap Obligation” has the meaning assigned to such term in the Guaranty Agreement.

Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) Taxes imposed on or measured by its overall net income (however denominated), and franchise Taxes imposed on it, by the jurisdiction (or any political subdivision thereof) under the Laws of which such recipient is organized or, if different, the jurisdiction(s) in which that recipient is treated as resident for Tax purposes or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup withholding Tax that is required by the Code to be withheld from amounts payable to a Lender or Administrative Agent that has failed to comply with Section 3.01(e)(iv), (d) any Taxes imposed under FATCA (including as a result of any Lender or Administrative Agent failing to comply with Section 3.01(e)(v)) and (e) in the case of a Lender (other than an assignee pursuant to a request by the Borrower under Section 10.13), any United States withholding Tax that (i) is required to be imposed on amounts payable to such Lender pursuant to the Laws in force at the time such Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e)(iv), except in each case to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrower with respect to such withholding Tax pursuant to Section 3.01. Notwithstanding anything to the contrary contained in this definition, “Excluded Taxes” shall not include any Tax Deduction on account of Taxes imposed by the United Kingdom.

 

11


Existing Credit Agreement” means that certain Credit Agreement, dated as of December 16, 2011 (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time), by and among the Borrower, the Parent, Barclays Bank PLC, as administrative agent, and the lenders and other financial institutions party thereto.

Existing Senior Notes” means any or all of (a) the 4.125% senior notes due 2016 issued by the Parent, (b) the 6.20% senior notes due 2017 issued by the Parent, (c) the 7.00% senior notes due 2019 issued by the Parent, (d) the 5.75% senior notes due 2021 issued by the Parent, (e) the 4.625% senior notes due 2023 issued by the Parent and (f) the 6.125% senior notes due 2043 issued by the Parent.

Facility” means, individually or collectively as the context may indicate, the Tranche A Facility or the Tranche B Facility.

FATCA” means (a) Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and (b) any treaty, law, regulation, rule or practices of any other jurisdiction, relating to or adopted pursuant to an intergovernmental agreement between the United States and such other jurisdiction, which (in either case) facilitates the implementation of any law, regulation or agreement referred to in clause (a) above.

FCPA” has the meaning specified in Section 5.17(c).

Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day; and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Person acting as the Administrative Agent on such day on such transactions as determined by the Administrative Agent.

Fee Letters” means (a) the Arranger Fee Letter and (b) the Agency Fee Letter.

Finance Party” has the meaning specified in Section 3.01(k).

Financial Officer” means, with respect to the Parent or the Borrower, the chief executive officer, chief financial officer, principal accounting officer, treasurer or controller thereof or any director thereof with similar responsibilities, as applicable.

FRB” means the Board of Governors of the Federal Reserve System of the United States.

Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or

 

12


such other principles as may be in general use by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

German Person” means any Person qualifies as resident party domiciled in the of the Federal Republic of Germany within the meaning of the Foreign Trade and Payments Act (Außenwirtschaftsgesetz).

Governmental Authority” means the government of the United Kingdom, United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, organization, instrumentality, regulatory body, department, court, central bank, governmental, intergovernmental or supranational body or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Granting Lender” has the meaning specified in Section 10.06(h).

Gras Savoye” means GS & Cie Groupe, a French entity in which the Parent has an indirect interest.

Gras Savoye Acquisition” means the acquisition of the full ownership of Gras Savoye by the Parent or one of its Subsidiaries pursuant to the Gras Savoye Acquisition Agreement.

Gras Savoye Acquisition Agreement” means the Securities Transfer Agreement, dated as of June 25, 2015 (as may be amended to give effect to Section 6.09), between Willis Europe BV, as purchaser, and the sellers party thereto, with respect to the sale of shares of Gras Savoye and its Affiliates.

Gras Savoye Acquisition Date” means the date of the consummation of the Gras Savoye Acquisition.

Gras Savoye Funding Date” means the date of the Borrowing of the Tranche A Term Loan.

Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part); or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

 

13


Guarantors” means (a) the Parent, WNA and each other Subsidiary of the Parent identified on Schedule 1.01(b) and (b) each other Person that, whether at the option of the Parent, pursuant to Section 4.13 of the Guaranty Agreement or otherwise, at any time becomes a party to the Guaranty Agreement as a Guarantor thereunder.

Guaranty Agreement” means the Guaranty Agreement, substantially in the form of Exhibit E, among the Borrower, the Guarantors and the Administrative Agent, and any other agreement entered into from time to time pursuant to which any Person guarantees any of the Obligations.

Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic materials, substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

HMRC” means United Kingdom H.M. Revenue & Customs.

HSBC” means HSBC Bank plc.

Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed (the amount of such Indebtedness shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Lien is granted or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the Person who granted such Lien in good faith), (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty and (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances. For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract, to the extent otherwise constituting Indebtedness, on any date shall be deemed to be the Swap Termination Value thereof as of such date.

Indemnified Taxes” means Taxes other than Excluded Taxes and Other Taxes.

Indemnitees” has the meaning specified in Section 10.04(b).

Information” has the meaning specified in Section 10.07.

Initial Funding Date” means the first date that a Loan is made to the Borrower.

 

14


Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of such Loan; provided that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date of any such Base Rate Loan.

Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two, three or six months thereafter (or, if available to all of the Lenders under the applicable Facility, twelve months or, subject to the consent of the Administrative Agent, and if available to all Lenders, any other longer or shorter period that may be requested by the Borrower), as selected by the Borrower in its Borrowing Request; provided that:

 

  (i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day, unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

 

  (ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

 

  (iii) no Interest Period shall extend beyond the Maturity Date.

Interpolated Rate” means,

 

  (i) in relation to the LIBO Rate, the rate which results from interpolating on a linear basis between:

 

  (A) the applicable LIBO Rate for the longest period (for which that LIBO Rate is available) which is less than the Interest Period of that Loan; and

 

  (B) the applicable LIBO Rate for the shortest period (for which that LIBO Rate is available) which exceeds the Interest Period of that Loan,

 

  (ii) in relation to the EURIBOR Rate, the rate which results from interpolating on a linear basis between:

 

  (A) the applicable EURIBOR Rate for the longest period (for which that EURIBOR Rate is available) which is less than the Interest Period of that Loan; and

 

  (B) the applicable EURIBOR Rate for the shortest period (for which that EURIBOR Rate is available) which exceeds the Interest Period of that Loan,

in each case as of approximately 11:00 a.m. (London, England time) two Business Days prior to the commencement of such Interest Period of that Loan.

Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of any Equity Interests of another

 

15


Person; (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees the Indebtedness of such other Person; or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

IRS” means the United States Internal Revenue Service.

ITA” means the United Kingdom Income Tax Act 2007.

JPM” means J.P. Morgan Securities LLC and its successors.

Judgment Currency” has the meaning specified in Section 10.19.

Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

Lender” means the Persons listed on Schedule 2.01 and any other Person that shall have become a Lender hereunder pursuant to an Assignment and Assumption (other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption).

Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

Lloyds” means Lloyds Securities Inc. and its successors.

Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Term Loan.

Loan Documents” means this Agreement, each Note, the Fee Letters and the Guaranty Agreement.

Loan Parties” means, collectively, the Borrower and the Guarantors.

M&T” means M&T Bank.

 

16


Majority Tranche Lenders” means, with respect to any Tranche, the holders of more than 50% of the Dollar Equivalent of the aggregate unpaid principal amount of the outstanding Loans of such Tranche (or prior to the termination of all of the Commitments under such Tranche, the holders of more than 50% of the outstanding Commitments under such Tranche; provided that any Commitments held or deemed held by a Defaulting Lender shall be excluded for purposes of making a determination of Majority Tranche Lenders at any time).

Marketing Information” means (a) the form 10-K of the Parent filed with the SEC for the fiscal year ended December 31, 2014, (b) the form 10-Q of the Parent filed with the SEC for the period ended September 30, 2015, and (c) the Confidential Information Memorandum of the Borrower and the Parent dated October 2015 and provided to the Lenders in connection with the syndication of the Facilities.

Material Acquisition” means an acquisition by the Parent or any of its Subsidiaries of any Person, property, business or asset outside the ordinary course of business for total consideration in excess of $50,000,000.

Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the business, financial position, property or results of operations of the Parent and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.

Material Indebtedness” means any Indebtedness (other than the Loans) of any one or more of the Parent and its Subsidiaries in an aggregate principal amount exceeding $50,000,000.

Material Swap Obligations” means obligations in respect of one or more Swap Contracts with an aggregate Swap Termination Value exceeding $50,000,000.

Maturity Date” means the date that is 364 days following the Initial Funding Date.

Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

Multiemployer Plan” means any employee benefit plan as defined in Section 4001(a)(3) of ERISA, to which the Parent or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions (excluding any foreign plans of Parent or any of its ERISA Affiliates).

Net Cash Proceeds” means proceeds received by the Parent or any of its Subsidiaries after the Initial Funding Date in cash or cash equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, and casualty insurance settlements and condemnation awards, but in each case only as and when received) from any (a) Disposition (other than a Disposition permitted under Section 7.05(a), (b), (c) or (e)), net of (i) the costs, fees and expenses actually incurred in connection therewith (including, without limitation, attorneys’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees), (ii) Taxes paid or reasonably estimated to be payable (including pursuant to a Tax sharing arrangement or Tax distribution) as a result thereof, (iii) any amount required to be paid or prepaid on Indebtedness secured by the assets subject to such Disposition (including any associated premium or penalty), and (iv) any reserve for adjustment in respect of (A) the sale price of such asset or assets established in accordance with GAAP and (B) any liabilities

 

17


associated with such asset or assets and retained by the Parent or any of its Subsidiaries after such sale or other disposition thereof, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction, with it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or cash equivalents (1) received upon the Disposition of any non-cash consideration received by the Parent or any of its Subsidiaries in any such Disposition and (2) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (iv) above; or (b) any Debt Issuance or Equity Issuance, net of underwriting discounts, brokers’ and advisors’ fees and other costs and expenses incurred in connection with such transaction.

Net Worth” means, as of any date, (a) the amount of total assets of the Parent and its Subsidiaries minus (b) the amount of total liabilities of the Parent and its Subsidiaries, in each case, that would be reflected on a balance sheet of the Parent and its Subsidiaries prepared as of such date on a consolidated basis in accordance with GAAP.

New Senior Notes” means any issuance of senior notes by the Parent after the date hereof, the proceeds of which are intended to be used, in whole or in part, to redeem, repurchase or otherwise retire any Existing Senior Notes.

Non-US Subsidiary” means any Subsidiary incorporated or organized under the laws of a jurisdiction outside of the United States.

Note” means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit B.

Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees with respect thereto that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that the Obligations of any Guarantor shall not include any Excluded Swap Obligations.

Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable organizational documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement (or equivalent or comparable organizational documents with respect to any non-U.S. jurisdiction); and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

Other Taxes” means all present or future stamp, registration or documentary Taxes or duties or any other excise or property Taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document (but excluding any such Tax in respect of the assignment or transfer (other than pursuant to a written request by or notice from a Loan Party or any request or notice delivered pursuant to Section 3.01(e)(ii) or Section 3.06(a)) by any Lender of any of its rights and obligations under this Agreement or any other Loan Document).

 

18


Outstanding Amount” means with respect to Term Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Term Loans occurring on such date.

Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation; and (b) with respect to any amount denominated in Euros, the rate of interest per annum at which overnight deposits in Euros, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Barclays in the applicable offshore interbank market for such currency to major banks in such interbank market.

Parent” has the meaning specified in the introductory paragraph hereto.

Parent and Borrower Materials” has the meaning specified in Section 6.01.

Participant” has the meaning specified in Section 10.06(e).

Participant Register” has the meaning specified in Section 10.06(e).

Participating Member State” means each state so described in any EMU Legislation.

PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Parent or any ERISA Affiliate or to which the Parent or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years (excluding any foreign pension plans of Parent or any of its ERISA Affiliates).

Permitted Encumbrances” means:

(a) Liens imposed by law for Taxes that are not yet due or are being contested in compliance with Section 6.04;

(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business;

(c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;

(d) deposits and other Liens (limited solely to Liens on consideration owing under the contracts and other like obligations the performance of which is secured thereby) to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

 

19


(e) judgment liens in respect of judgments that do not constitute an Event of Default under Section 8.01(i); and

(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Parent or any Subsidiary;

provided that the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.

Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

Platform” has the meaning specified in Section 6.01.

PNC” means PNC Bank, N.A.

Prime Rate” means (a) the rate of interest publicly announced, from time to time, by the Administrative Agent at its principal office in New York City as its “prime rate,” with the understanding that the “prime rate” is one of the Administrative Agent’s base rates (not necessarily the lowest of such rates) and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto and is evidenced by the recording thereof after its announcement in such internal publications as the Administrative Agent may designate or (b) if the Administrative Agent has no “prime rate,” the rate of interest last quoted by The Wall Street Journal as the “prime rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably determined by the Administrative Agent).

Public Lender” has the meaning specified in Section 6.01.

Recipient” has the meaning specified in Section 3.01(k).

Refinancing Indebtedness” means, any Indebtedness refinancing, refunding or replacing any Indebtedness outstanding on the Effective Date (and any subsequent Refinancing Indebtedness in respect thereof); provided that:

(a) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (i) an amount equal to unpaid accrued interest and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement, (ii) an amount equal to any existing commitments unutilized thereunder and (iii) additional amounts available under clause (v) of the definition of Debt Issuance,

(b) such Indebtedness is not guaranteed by any Person other than the Guarantors,

(c) such Indebtedness is incurred solely to refinance, in whole or part, the Indebtedness being refinanced, refunded or replaced (except for interest, premiums, costs,

 

20


expenses, unused commitments and other amounts described in clauses (a)(i) and (ii) above and, with respect the additional amount permitted in clause (a)(iii) above, for investments, acquisitions and other general corporate purposes), and the proceeds thereof shall first be substantially contemporaneously applied to prepay such Indebtedness, interest and any premium (if any) thereon, and fees and expenses in connection with such Refinancing Indebtedness, and

(d) such Indebtedness has a final maturity no earlier, and a Weighted Average Life to Maturity no shorter, than the Indebtedness being refinanced, refunded or replaced.

Register” has the meaning specified in Section 10.06(d).

Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice requirement has been waived under the applicable regulations.

Required Lenders” means, as of any date of determination, but subject to Section 2.16(a)(i), the holders of more than 50% of (a) until the Effective Date, the Aggregate Commitments then in effect and (b) thereafter, (y) if the Commitments have not been terminated, the sum of (i) the Dollar Equivalent amount of the aggregate Outstanding Amount of all Term Loans and (ii) the Aggregate Commitments then in effect or (z) if the Commitments have been terminated, the Dollar Equivalent amount of the aggregate Outstanding Amount of all Term Loans; provided that the portion of the Commitments and Loans, as applicable, held or deemed held by a Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders at any time.

Requisite Qualified Acquisition Threshold” means, as of any date, an acquisition or series of acquisitions (whether related or not) during the previous fifteen (15) month period by the Parent or any of its Subsidiaries of any Persons, properties, businesses or assets outside the ordinary course of business for aggregate consideration of $250,000,000 or more.

Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer, controller or (to the extent such Person is permitted to take any applicable action pursuant to the Organization Documents of such Loan Party) director or other authorized signatory of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Parent or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the Parent’s or the Borrower’s stockholders, partners or members (or the equivalent Person thereof).

Revaluation Date” means, with respect to any Loan, each of the following: (a) the date of Borrowing of the Tranche A Term Loans, (b) each date of a continuation of a Eurocurrency Rate Loan denominated in the Euros or any other alternative currency pursuant to Section 2.02, and (c) such other dates on which a Dollar Equivalent is required to be determined hereunder.

 

21


S&P” means Standard & Poor’s Financial Services LLC and any successor thereto.

Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State, or (b) the European Union or Her Majesty’s Treasury of the United Kingdom.

Sanctioned Country” means, at any time, a country or territory which is itself the subject or target of any Sanctions (presently Cuba, Iran, North Korea, Sudan, Syria, and the Crimea region of Ukraine).

Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, or by the European Union or any EU member state, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons.

SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

Sold Entity or Business” has the meaning assigned to such term in the definition of “Consolidated EBITDA”.

SPC” has the meaning specified in Section 10.06(h).

Specified Representations” mean the representations and warranties set forth in Section 5.01(a) (solely as it relates to organizational existence of the Loan Parties), Section 5.01(b) (solely as it relates to organizational power and authority of the Loan Parties in connection with the due authorization, execution, delivery and performance of the Loan Documents), Section 5.02 (solely as it relates to the due authorization, execution, delivery, performance by the Loan Parties and enforceability of the Loan Documents), Section 5.03(b)(ii) (solely as it relates to no conflicts of the applicable Loan Documents with the applicable Organization Documents of the Loan Parties), Section 5.08, Section 5.14, Section 5.17(a)(ii), Section 5.17(b) and Section 5.17(c)(i).

Spot Rate” for a currency means the rate determined by the Administrative Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.

STRH” means SunTrust Robinson Humphrey, Inc. and its successors.

Subject Party” has the meaning specified in Section 3.01(k).

Subject Proceeds” has the meaning specified in Section 2.05(b)(iii).

Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the Equity Interests having ordinary voting power for the election of directors or other governing body (other than Equity Interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management

 

22


of which is otherwise Controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent.

SunTrust” means SunTrust Bank and its successors.

Supplier” has the meaning specified in Section 3.01(k).

Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Parent of the Subsidiaries shall be a Swap Contract.

Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the termination value(s) for such Swap Contract, as determined in accordance therewith as if such Swap Contract had been closed out on such date and each counterparty thereto were an “Affected Party” (or similar term) thereunder.

Syndication Agent” means SunTrust in its capacity as syndication agent.

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

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

Tax Deduction” means a deduction or withholding for or on account of Taxes from a payment hereunder or under any other Loan Document.

Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

Term Loan” means, at any time, the Tranche A Term Loan and/or the Tranche B Term Loan, as the case may be or as the context requires.

 

23


Towers Watson” means Towers Watson & Co., a Delaware corporation (or, following the Towers Watson Restructuring Transactions, WTW Delaware Holdings, LLC, a Delaware limited liability company).

Towers Watson Facility” means the credit agreement to be entered into by and among Towers Watson Delaware, Inc., as borrower, Bank of America, N.A., as agent, and the other parties thereto.

Towers Watson Funding Date” means the date of the Borrowing of the Tranche B Term Loan.

Towers Watson Merger Agreement” means that certain Agreement and Plan of Merger, dated June 29, 2015 (as amended by that certain Amendment No. 1, dated as of November 19, 2015), by and among Parent, Citadel Merger Sub, Inc. and Towers Watson & Co.

Towers Watson Merger” means the Merger under and as defined in the Towers Watson Merger Agreement.

Towers Watson Restructuring Transactions” means the Restructuring Transactions (and transactions related thereto) under and as defined in the Towers Watson Merger Agreement.

Tranche” means, when used in reference to any Commitments, Loans or Borrowing, refers to whether such Commitments are in respect of the Tranche A Facility or the Tranche B Facility or whether such Loans, or the Loans comprising such Borrowing, are Tranche A Term Loans or Tranche B Term Loans, as applicable.

Tranche A Facility” means the Outstanding Amount of, or Commitments in respect of, the Tranche A Term Loans of all Lenders and the provisions herein related to the Tranche A Term Loans.

Tranche A Term Loan” has the meaning set forth in Section 2.01.

Tranche B Facility” means the Outstanding Amount of, or Commitments in respect of, the Tranche B Term Loans of all Lenders and the provisions herein related to the Tranche B Term Loans.

Tranche B Term Loan” has the meaning set forth in Section 2.01.

Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.

UK Bribery Act” has the meaning specified in Section 5.17(c).

UK Non-Bank Lender” means (a) where a Lender becomes a party hereto on the day on which this Agreement is entered into, a Lender listed in Schedule 3.01(j), and (b) where a Lender becomes a party hereto after the day on which this Agreement is entered into, a Lender which gives a UK Tax Confirmation in the Assignment and Assumption which it executes on becoming a party hereto.

UK Pension Plan” means the Willis Pension Scheme.

UK Pensions Regulator” means the pensions regulator established in the United Kingdom by section 1 of the Pensions Act 2004.

UK Qualifying Lender” means (a) a Lender (other than a Lender within clause (b) below) which is beneficially entitled to interest payable to that Lender in respect of an advance hereunder or under any other Loan Document and is (i) a Lender (A) which is a bank (as defined for the purpose of section 879 of

 

24


the ITA) making an advance hereunder or under any other Loan Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payment apart from Section 18A of the CTA or (B) in respect of an advance made hereunder or under any other Loan 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 within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance, (ii) a Lender which is (A) a company resident in the United Kingdom for United Kingdom tax purposes, (B) a partnership each member of which is (1) a company so resident in the United Kingdom, or (2) 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 or (iii) a UK Treaty Lender, or (b) a Lender which is a building society (as defined for the purposes of section 880 of the ITA) making an advance hereunder or under any other Loan Document.

UK Tax Confirmation” means a confirmation by a Lender that the Person beneficially entitled to interest payable to that Lender in respect of an advance hereunder or under any other Loan Document is either (a) a company resident in the United Kingdom for United Kingdom tax purposes, (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 payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

UK Treaty” has the meaning given to it in the definition of “UK Treaty State” below.

UK Treaty Lender” means a Lender which (a) is treated as a resident of a UK Treaty State for the purposes of the UK Treaty, (b) does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the relevant Loan is effectively connected and (c) fulfills any other condition that must be fulfilled under the relevant UK Treaty by residents of the relevant UK Treaty State for such residents to be entitled to obtain full exemption from tax imposed by the United Kingdom on interest (subject to the completion of any necessary procedural formalities and/or the granting of exemption by any relevant taxing authority).

UK Treaty State” means a jurisdiction having a double taxation agreement (a “UK Treaty”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.

Underwritten Securities” means debt, equity and/or equity-linked securities that are underwritten and/or initially purchased for the purpose of placement with or distribution to third parties.

United States” and “U.S.” mean the United States of America.

USA PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).

 

25


VAT” means (a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and (b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in clause (a), or imposed elsewhere.

Weighted Average Life to Maturity” shall mean, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.

Wells” means Wells Fargo Bank, N.A. and its successors.

WFS” means Wells Fargo Securities, LLC and its successors.

WGL” means Willis Group Limited, a company formed under the laws of England and Wales having company number 00621757.

WNA” means Willis North America, Inc., a Delaware corporation and an indirect Subsidiary of the Parent.

WSI” means Willis Securities, Inc., a Delaware corporation and an indirect Subsidiary of the Parent that is a licensed broker-dealer.

WSI Credit Agreement” means that certain Revolving Note and Cash Subordination Agreement, dated as of March 3, 2014 (as amended, restated, amended and restated, supplemented, extended, renewed or otherwise modified or replaced from time to time), between WSI, as borrower, certain lenders from time to time parties thereto, SunTrust Bank, as administrative agent, and the other agents party thereto.

WTWB” means WTW Bermuda Holdings Ltd., a company formed under the laws of Bermuda.

WTWS” means Willis Towers Watson Sub Holdings Limited, a company formed under the laws of Ireland with company number 567171.

1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof” and “hereunder” and words of similar import when used in any Loan Document shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and

 

26


Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

(b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including”.

(c) Article and Section headings and the Table of Contents used herein and in the other Loan Documents are included for convenience of reference only, are not part of this Agreement or any other Loan Document and shall not affect the construction or interpretation of this Agreement or any other Loan Document.

1.03 Accounting Terms.

(a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein and (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof.

(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower and the Parent shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. For the purposes of the definition of Capital Lease Obligations, operating leases that are required to be reclassified as capital leases as a result of any change in GAAP shall remain classified as operating leases and shall not be included within the definition of Capital Lease Obligations.

(c) Consolidation of Variable Interest Entities. All references herein to consolidated financial statements of the Parent and its Subsidiaries or to the determination of any amount for the Parent

 

27


and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Parent is required to consolidate pursuant to FASB Interpretation No. 46 (revised December 2003) - Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a Subsidiary as defined herein.

1.04 Rounding. Any financial ratios required to be maintained by the Parent pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

1.05 Exchange Rates; Currency Equivalents. The Administrative Agent shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Borrowings and Outstanding Amounts denominated in Euros. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by the Loan Parties hereunder and calculating financial covenants hereunder, and, except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent.

1.06 [Intentionally Omitted].

1.07 Change of Currency.

(a) Each obligation of the Borrower to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.

(b) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.

(c) Each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.

1.08 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

 

28


ARTICLE II.

THE COMMITMENTS AND BORROWINGS

2.01 The Loans. Subject to the terms and conditions set forth herein, each Lender has severally agreed to make a single loan (the “Tranche A Term Loan”) to the Borrower in Euros on the Gras Savoye Funding Date and a single loan (the “Tranche B Term Loan”) in Dollars on the Towers Watson Funding Date, from time to time, on any Business Day during the applicable Availability Period, in an aggregate amount not to exceed the amount of such Lender’s Commitment under the Tranche A Facility or Tranche B Facility, as applicable. Amounts borrowed under this Section 2.01 and repaid or prepaid may not be reborrowed. The Borrower may specify that Term Loans may be Eurocurrency Rate Loans or Base Rate Loans pursuant to a Borrowing Request delivered in accordance with Section 2.02.

2.02 Borrowings, Conversions and Continuations of Loans.

(a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of (A) any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or (B) any conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate Loans and (ii) one Business Day prior to the requested date of any Borrowing of Base Rate Loans in Dollars. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Borrowing Request, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or Base Rate Loans shall be in a principal amount of (x) $5,000,000 or any whole multiple of $1,000,000 in excess thereof or (y) €5,000,000 or any whole multiple of €1,000,000 in excess thereof, as applicable. Each Borrowing Request (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) the currency of the Loans to be borrowed. If the Borrower fails to specify a Type of Loan in a Borrowing Request or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made or continued, as applicable, as Eurocurrency Rate Loans with an Interest Period of one month. Any automatic conversion to Base Rate Loans or continuation as Eurocurrency Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Borrowing Request, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currency.

(b) Following receipt of a Borrowing Request, the Administrative Agent shall promptly notify each Lender of the amount (and currency) of its Applicable Percentage of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans (in the case of Tranche B Term Loans) or continuation as Eurocurrency Rate Loans with an Interest Period of one month (in the case of Tranche A Term Loans), in each case as described in the preceding subsection. Each Lender shall make the amount of its Loan available to the Administrative Agent in same day funds at the Administrative Agent’s Office for the applicable currency not later than 1:00 p.m. (New York City time), in the case of any Loan denominated in Dollars, and not later than 10:30 a.m. (New York City time), in the case of any Loan in Euros, in each case on the Business Day specified in the applicable Borrowing Request. Upon satisfaction of the applicable conditions set forth in Article IV, the

 

29


Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Barclays with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.

(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. If a Default or Event of Default exists and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, so long as such Default or Event of Default exists, (i) no Loans denominated in Dollars may be requested as, converted to or continued as Eurocurrency Rate Loans and in the case of Eurocurrency Rate Loans denominated in Dollars, shall be automatically converted to Base Rate Loans at the conclusion of the then-applicable Interest Period and (ii) in the case of Eurocurrency Rate Loans denominated in Euros, no Loans denominated in Euros may be continued as Eurocurrency Rate Loans, other than with an Interest Period of one month at the conclusion of the then-applicable Interest Period).

(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Barclays’ prime rate used in determining the Base Rate promptly following the public announcement of such change.

(e) After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect at any time.

2.03 [Intentionally Omitted].

2.04 [Intentionally Omitted].

2.05 Prepayments and Mandatory Commitment Reductions.

(a) Optional Prepayments. The Borrower may, upon notice to the Administrative Agent substantially in the form of Exhibit F hereto, at any time or from time to time voluntarily prepay Loans in whole or in part without premium or penalty; provided that (i) such notice must specify the Tranche or Tranches thereof to be prepaid and the respective principal amounts thereof and must be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans and (B) one Business Day prior to the date of prepayment of Base Rate Loans; and (ii) any prepayment of Loans shall be in a principal amount of (A) $10,000,000 or any whole multiple of $1,000,000 in excess thereof or (B) €10,000,000 or any whole multiple of €1,000,000 in excess thereof, as applicable, or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage of the relevant Tranche). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each prepayment of any Tranche of Term Loans pursuant to this Section 2.05(a) shall be paid to the Lenders in accordance with the Lenders’ respective Applicable Percentages of the relevant Tranches.

 

30


(b) Mandatory Prepayments and Commitment Reductions.

(i) Dispositions. If the Parent or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Section 7.05(a), (b), (c) or (e)), in one or a series of related transactions, which results in the realization by such Person of aggregate Net Cash Proceeds (or the Dollar Equivalent thereof) in excess of $10,000,000, then the Borrower shall prepay the Term Loans an aggregate amount equal to the amount of such Net Cash Proceeds in excess of such amount in accordance with Section 2.05(b)(iii); provided that, notwithstanding the foregoing, at the election of the Borrower (as notified by the Borrower to the Administrative Agent within ten Business Days from the date of such Disposition), and so long as no Event of Default shall have occurred and be continuing, the Parent or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets useful in the business of the Parent and its Subsidiaries so long as within 365 days after the receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (or committed to be reinvested within 180 days); and provided, further, that any such Subject Proceeds not so applied within such period shall be immediately applied to the prepayment of the Term Loans as set forth in Section 2.05(b)(iii).

(ii) Issuance of Indebtedness and Equity Interests. In the event that the Parent or any of its Subsidiaries receives any Net Cash Proceeds resulting from any Debt Issuance or Equity Issuance (other than the exercise price on stock options issued as part of compensation) then the Borrower shall prepay the Term Loans in an aggregate amount equal to 100% of such Net Cash Proceeds in accordance with Section 2.05(b)(iii).

(iii) Manner of Prepayment; Notice. In the event that the Parent or any of its Subsidiaries receives any Net Cash Proceeds resulting from any Disposition, Debt Issuance or Equity Issuance which gives rise to a mandatory prepayment pursuant to clauses (i) or (ii) above (the amount of such mandatory prepayment resulting from receipt of such Net Cash Proceeds, the “Subject Proceeds”), (A) during the period commencing on the Initial Funding Date and ending on the last day of the Availability Period for any undrawn Facility, then 100% of such Subject Proceeds shall be applied by the Borrower to prepay the applicable Tranche of Term Loans not later than ten Business Days following the receipt by the Parent or its Subsidiaries of such Subject Proceeds until repaid in full and (B) after the Availability Period has ended with respect to both Facilities, then 100% of such Subject Proceeds shall be applied by the Borrower to prepay the Term Loans not later than ten Business Days following the receipt by the Parent or its Subsidiaries of such Subject Proceeds. The Borrower shall promptly notify the Administrative Agent of the receipt by the Parent or its Subsidiaries of any such Subject Proceeds and the Administrative Agent will promptly notify each Lender of its receipt of each such notice. Each mandatory prepayment of Term Loans pursuant to clause (B) above shall be due and payable in respect of each Tranche of the Term Loans on a pro rata basis by calculating the Dollar Equivalent amount of Outstanding Amount of all Term Loans.

(iv) Prepayment if Gras Savoye Acquisition Not Consummated. The Borrower shall, within seventeen (17) days of the Gras Savoye Funding Date, make a prepayment in accordance with Section 6.09 if the Gras Savoye Acquisition is not consummated within fourteen (14) days of the Gras Savoye Funding Date.

(v) Termination of Commitments. The Aggregate Commitments in respect of each Facility shall be automatically and permanently reduced to zero on the earlier of (A) the last day of the Availability Period for such Facility (if no Borrowing is made pursuant to Section 2.01) and (B) the day on which the Term Loans for such Facility have been advanced in accordance with Section 2.01.

 

31


2.06 Optional Termination or Reduction of Commitments. The Borrower may, at its option and upon notice to the Administrative Agent, terminate either Facility, or from time to time permanently reduce in part the Commitments under either Facility; provided that (i) any such notice shall be received by the Administrative Agent not later than two Business Days prior to the date of termination or reduction and (ii) any such partial reduction shall be in an aggregate amount of (A) $10,000,000 or any whole multiple of $1,000,000 in excess thereof or (B) €10,000,000 or any whole multiple of €1,000,000 in excess thereof, as applicable. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the applicable Commitments. Any reduction of the Commitments under any Facility shall be applied to the Commitments of each Lender according to its Applicable Percentage under such Facility.

2.07 Repayment of Loans. The Borrower shall repay to the Administrative Agent for the ratable account of the Lenders the aggregate principal amount of all Loans outstanding on the Maturity Date.

2.08 Interest.

(a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.

(b) (i) If any amount payable by any Loan Party under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(ii) Upon the request of the Required Lenders, while any Event of Default exists, the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(iii) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

2.09 Fees.

(a) Ticking Fees. The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage of the Aggregate Commitments attributable to each Facility, a ticking fee equal to the Applicable Rate times the actual daily amount of the Aggregate Commitments attributable to such Facility. The ticking fees set forth above shall accrue, in respect of each Facility, at all times during the Availability Period for such Facility, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable on the earlier of (x) the date of Borrowing of such Facility and (y) on the last day of the Availability Period for such Facility. If there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.

 

32


(b) Other Fees. The Borrower shall pay (A) to the Arrangers for their own respective accounts, in Dollars, fees in the amounts and at the times specified in the Arranger Fee Letter and (B) to the Administrative Agent for its own account, in Dollars, fees in the amounts and at the times specified in the Agency Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever, except, with respect to the Agency Fee Letter, as specified therein.

(c) The Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans based on the “Prime Rate” pursuant to clause (b) of the definition of “Base Rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

2.11 Evidence of Debt. The Term Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Loans made by the Lenders to the Borrower and the interest and payments thereon. Any failure so to record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and payments with respect thereto.

2.12 Payments Generally; Administrative Agent’s Clawback.

(a) General. All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. All payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in the currency which such payment is owed and in same day funds not later than 1:00 p.m. (New York City time) (with respect to payments in Dollars) or 10:30 a.m. (New York City time) (with respect to payments in Euros) on the date specified herein. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in Euros, the Borrower shall make such payment in Dollars in the Dollar Equivalent of the Euros payment amount. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage of the relevant Tranche (or other applicable share as provided herein) of such payment in like

 

33


funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after the above-mentioned cut-off times shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

(b) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in same day funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans (in the case of Loans denominated in Dollars) or the Cost of Funds Rate plus the Applicable Rate for Eurocurrency Rate Loans (in all other cases). If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

(c) Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each Lender severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender in same day funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Overnight Rate. A notice of the Administrative Agent to the Borrower with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.

(d) Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

34


(e) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Term Loans and to make payments pursuant to Section 10.04(c), are several and not joint. The failure of any Lender to make any Loan or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or to make its payment under Section 10.04(c).

(f) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (i) Obligations due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (x) the Dollar Equivalent amount of such Obligations with respect to any Tranche due and payable to such Lender at such time to (y) the aggregate Dollar Equivalent amount of the Obligations due and payable to all Lenders holding Loans of such Tranche hereunder and under the other Loan Documents at such time) of payments on account of the Obligations due and payable to all Lenders under the applicable Tranche hereunder and under the other Loan Documents at such time obtained by all the Lenders under the applicable Tranche at such time or (ii) Obligations owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (x) the Dollar Equivalent amount of such Obligations with respect to any Tranche owing (but not due and payable) to such Lender at such time to (y) the aggregate Dollar Equivalent amount of the Obligations owing (but not due and payable) to all Lenders holding Loans of such Tranche hereunder and under the other Loan Documents at such time) of payments on account of the Obligations owing (but not due and payable) to all Lenders of the applicable Tranche hereunder and under the other Loan Documents at such time obtained by all of the Lenders of the applicable Tranche at such time, then the Lender receiving such greater proportion shall (A) notify the Administrative Agent of such fact, and (B) purchase (for cash at face value) participations in the applicable Tranche of Loans of the other Lenders of such Tranche, as applicable, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate Dollar Equivalent amount of Obligations then due and payable to the Lenders of such Tranche or owing (but not due and payable) to the Lenders, as the case may be; provided that:

(i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii) the provisions of this Section shall not be construed to apply to (A) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant.

(b) The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

2.14 [Intentionally Omitted].

 

35


2.15 [Intentionally Omitted].

2.16 Defaulting Lenders.

(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 10.01.

(ii) Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent with respect to this Agreement for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any amounts made available to or received by the Administrative Agent from such Defaulting Lender pursuant to Section 10.08) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and, sixth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay Dollar Equivalent amount of the Loans of all the non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this clause (ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

(iii) Certain Fees. No Defaulting Lender shall be entitled to receive any ticking fees payable under Section 2.09(a) for any period during which such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender).

(b) Defaulting Lender Cure. If the Borrower and the Administrative Agent, each in its sole discretion, agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may

 

36


determine to be necessary to cause the Loans of any Tranche to be held pro rata by the Lenders in accordance with their Commitments with respect to such Tranche (without giving effect to Section 2.16(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender; provided, further, that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.

ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY

3.01 Taxes.

(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i) Any and all payments by or on account of any obligation of the Borrower or any Guarantor hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and without reduction, withholding or deduction for or on account of any Taxes. If, however, any amount for or on account of Taxes is required to be withheld or deducted under any applicable Law, such amount for or on account of Taxes shall be withheld or deducted in accordance with such Laws. For purposes of this Section 3.01, “applicable Law” includes FATCA.

(ii) If any amount for or on account of Taxes is required to be withheld or deducted from any such payment under any applicable Law, then (A) the Borrower, the Guarantor or the Administrative Agent, as required by such Laws, shall withhold or make such deductions in the minimum amount required by such Laws, (B) the Borrower, the Guarantor or the Administrative Agent, to the extent required by such Laws, shall timely pay the full amount so withheld or deducted by it to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent that the withholding or deduction is made for or on account of Indemnified Taxes or Other Taxes, the sum payable by the Borrower or the Guarantor, as applicable, shall (subject to Section 3.01(h)) be increased as necessary so that after any required withholding or the making of all required deductions (including withholdings or deductions applicable to additional sums payable under this Section) the Administrative Agent or Lender, as the case may be, receives an amount equal to the sum it would have received had no such withholding or deduction been made.

(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Laws.

(c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or (b) above, but subject to subsection (c)(ii) below, the Borrower shall, and does hereby, indemnify the Administrative Agent, and each Lender and shall make payment in respect thereof within ten days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) withheld or deducted by the Borrower or the Administrative Agent or paid by the Administrative Agent or such Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The Borrower shall also, and does hereby, indemnify the Administrative Agent, and shall make payment in respect thereof within ten days after written demand therefor, for any amount which a Lender for any reason fails to pay indefeasibly to the

 

37


Administrative Agent as required by Section 9.10. A certificate as to the amount of any such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(ii) Subsection (c)(i) above shall not apply to the extent that the amount of such Indemnified Taxes or Other Taxes (A) is compensated for by an increased payment under subsection (a)(ii)(C) above or (B) would have been compensated for by an increased payment under subsection (a)(ii)(C) above, but was not so compensated solely because one of the exclusions in Section 3.01(h) applied.

(d) Evidence of Payments. Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Borrower shall deliver to the Administrative Agent for the Lender entitled to the relevant payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to such Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant Governmental Authority.

(e) Status of Lenders; Tax Documentation. (i) Each Lender shall indicate, in the case of a Lender party hereto as of the date of this Agreement, on Schedule 3.01 hereto, or in the case of any Lender which becomes a party hereto after the date of this Agreement, in the Assignment and Assumption which it executes on becoming a party hereto, and for the benefit of the Administrative Agent and without liability to any Loan Party, which of the following categories it falls in (A) not a UK Qualifying Lender, (B) a UK Qualifying Lender (other than a UK Treaty Lender), or (C) a UK Treaty Lender. If a Lender fails to indicate its status in accordance with this clause (e)(i) then such Lender shall be treated for the purposes of this Agreement (including by each Loan Party) as if it is not a UK Qualifying Lender until such time as it notifies the Administrative Agent which category applies (and the Administrative Agent, upon receipt of such notification, shall promptly inform the Borrower). For the avoidance of doubt, neither this Agreement nor an Assignment and Assumption shall be invalidated by any failure of a Lender to comply with this clause (e)(i).

(ii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent of any change in circumstances which does, or is reasonably likely to, modify or render invalid any claimed exemption from or reduction of Tax (including any exemption from Taxes required to be withheld or deducted from any payments hereunder or under any other Loan Document), and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws that the Borrower, any Guarantor or the Administrative Agent make any withholding or deduction for or on account of Taxes imposed by the United Kingdom from amounts payable to such Lender hereunder or under any other Loan Document.

(iii) The Borrower shall promptly deliver to the Administrative Agent or any Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to the Effective Date, and in a timely fashion thereafter, such documents and forms required by any relevant taxing authorities under the Laws of any jurisdiction, duly executed and completed by the Borrower, as are required to be furnished by such Lender or the Administrative Agent under such Laws in connection with any payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction.

 

38


(iv) In addition, each Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent (in such number as shall be requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the expiration of any previously delivered form or upon the request of the Borrower or the Administrative Agent) executed originals of IRS Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code and that is entitled under the Code or any applicable treaty to an exemption from or reduction of United States federal withholding Tax with respect to payments hereunder shall deliver to the Borrower and the Administrative Agent (in such number as shall be requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the expiration of any previously delivered form or upon the request of the Borrower or the Administrative Agent, but only if such Lender is legally entitled to do so), whichever of the following is applicable:

(A) executed originals of IRS Form W-8BEN or W-8BEN-E claiming eligibility for benefits of an income tax treaty to which the United States is a party;

(B) executed originals of IRS Form W-8ECI;

(C) executed originals of IRS Form W-8IMY and all required supporting documentation;

(D) in the case of a Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Lender is not (I) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (II) a “10-percent shareholder” of WNA within the meaning of section 881(c)(3)(B) of the Code or (III) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed originals of IRS Form W-8BEN or W-8BEN-E; or

(E) executed originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.

(v) If a payment made to a Lender hereunder or under any other Loan Document would be subject to Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this subsection (e)(v), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

39


Each Lender shall promptly notify the Borrower and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction.

(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If the Administrative Agent or any Lender determines, in its sole discretion acting in good faith, that it has received a refund or credit (in lieu of such refund) of any Taxes or Other Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section, it shall pay to such Loan Party an amount equal to such refund or credit (in lieu of such refund) (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section with respect to the Taxes or Other Taxes giving rise to such refund or credit (in lieu of such refund); provided that such payment to the relevant Loan Party shall not leave the Administrative Agent or any Lender, as the case may be, in a worse after-Tax position than it would have been in had the indemnity payment, or additional amount, not been required to be paid), net of all out-of-pocket expenses and net of any loss or gain realized in the conversion of such funds from or to another currency incurred by the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to the relevant Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any other Person. Notwithstanding anything to the contrary in this paragraph (f), in no event will the Administrative Agent or any Lender be required to pay any amount to the Borrower pursuant to this paragraph (f) the payment of which would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the Administrative Agent or such Lender would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.

(g) Notification by Borrower. The Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Administrative Agent.

(h) UK Qualifying Lenders. A payment shall not be increased under subsection (a) 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 such a Tax Deduction if the Lender had been a UK Qualifying Lender, but on that date that Lender is not or has ceased to be a UK 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 UK Treaty or any published practice or published concession of any relevant taxing authority, (ii) the relevant Lender is a UK Qualifying Lender solely by virtue of clause (a)(ii) of the definition of UK Qualifying Lender and (A) an officer of HMRC 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 Loan Party making the payment a certified copy of that Direction, and (B) the payment could have been made to the Lender without such a Tax Deduction if that Direction had not been made, (iii) the relevant Lender is a UK Qualifying Lender solely by virtue of clause (a)(ii) of the definition of UK Qualifying Lender and (A) the

 

40


relevant Lender has not given a UK Tax Confirmation to the Borrower, and (B) the payment could have been made to the Lender without such a Tax Deduction if the Lender had given a UK Tax Confirmation to the Borrower, on the basis that the UK Tax Confirmation would have enabled the Borrower 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 UK Treaty Lender and the Loan Party making the payment is able to demonstrate that the payment could have been made to the Lender without such a Tax Deduction had that Lender complied with its obligations under subsection (i) below.

(i) UK Treaty Lenders. (i) Subject to clause (ii) below, a UK Treaty Lender and each Loan Party which makes a payment to which that UK Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Loan Party to obtain authorization to make any payment to which such UK Treaty Lender is entitled without a Tax Deduction on account of Tax imposed by the United Kingdom.

(ii) Nothing in clause (i) above shall require a UK Treaty Lender to (A) register under the HMRC DT Treaty Passport scheme, (B) apply the HMRC DT Treaty Passport scheme to any Commitment or Loan if it has so registered, or (C) file UK Treaty forms if it has included an indication to the effect that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement in accordance with clause (iii) or (v) below and the Borrower has not complied with its obligations under clause (iii) or (v) below.

(iii) (A) A UK Treaty Lender which becomes a party hereto on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall include an indication to that effect (for the benefit of the Administrative Agent and without liability to any Loan Party) by including its scheme reference number and its jurisdiction of tax residence opposite its name in Schedule 3.01(i).

(B) Where a Lender includes the indication described in clause (A) above in Schedule 3.01(i), the Borrower shall, to the extent that that Lender is a Lender under a Commitment or Loan made available to the Borrower pursuant to this Agreement, file a duly completed form DTTP2 in respect of such Lender with HMRC (1) within 30 days of the date of this Agreement or (2) in the case of any Borrower which becomes a party hereto after the date of this Agreement, within 30 days of it becoming a Borrower, and, in each case, shall promptly provide the Lender with a copy of such filing.

(iv) If a Lender has not included an indication to the effect that it wishes the HMRC DT Treaty Passport Scheme to apply to this Agreement in accordance with clause (iii) above or clause (v) below, no Loan Party shall file any form relating to the HMRC DT Treaty Passport Scheme in respect of that Lender’s Commitment or its participation in any Loans unless that Lender otherwise agrees.

(v) (A) A Lender which becomes a party hereto after the date of this Agreement that is a UK Treaty Lender that holds a passport under the HMRC DT Treaty Passport scheme, and that wishes that scheme to apply to this Agreement, shall include an indication to that effect (for the benefit of the Administrative Agent and without liability to any Loan Party) in the Assignment and Assumption which it executes by including its scheme reference number and its jurisdiction of tax residence in that Assignment and Assumption.

(B) Where a Lender which becomes a party hereto after the date of this Agreement includes the indication described in clause (A) above in the relevant

 

41


Assignment and Assumption, the Borrower shall, to the extent that that Lender becomes a Lender under a Commitment or Loan which is made available to the Borrower pursuant to this Agreement, file a duly completed form DTTP2 in respect of such Lender with HMRC (1) within 30 days of the date on which that Lender becomes a party hereto or (2) in the case of any Borrower which becomes a party hereto after the date on which the Lender becomes a party hereto, within 30 days of it becoming a Borrower, and shall, in each case, promptly provide the Lender with a copy of such filing.

(j) UK Non-Bank Lenders. A UK Non-Bank Lender which becomes a party hereto on the day on which this Agreement is entered into gives a UK Tax Confirmation to each Loan Party by entering into this Agreement. A UK Non-Bank Lender shall notify the Borrower and the Administrative Agent if there is any change in the position from that set out in the UK Tax Confirmation.

(k) VAT. (i) All amounts set out or expressed in a Loan Document to be payable by any party to the Administrative Agent or any Lender (each, a “Finance Party” for the purposes of this subsection (k)) 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 clause (ii) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any party hereto under this Agreement or any other Loan 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).

(ii) If VAT is or becomes chargeable on any supply made by any Finance Party (the “Supplier”) to any other Finance Party (the “Recipient”) under this Agreement or any other Loan Document, and any party hereto other than the Recipient (the “Subject Party”) is required by the terms of this Agreement or any other Loan 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), the Subject Party shall also pay to the Supplier (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.

(iii) Where this Agreement or any other Loan Document requires any party hereto 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.

(iv) Any reference in this subsection (k) to any Person shall, at any time when such Person 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 (the term “representative member” to have the same meaning as in the United Kingdom Value Added Tax Act 1994), or any substantially similar concept in the case of a group for non-United Kingdom VAT purposes, at such time.

(l) Solely for United States income tax purposes, all parties to this Agreement agree that payments by or on account of any obligation of the Borrower or any Guarantor hereunder shall be treated as payments from sources within the United States.

 

42


3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans (whether denominated in Dollars or Euros), or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars or Euros in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans in the affected currency or currencies or, in the case of Eurocurrency Rate Loans in Dollars, to convert Base Rate Loans to Eurocurrency Rate Loans, shall be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), either prepay or convert all such Eurocurrency Rate Loans of such Lender to Base Rate Loans (in the case of Loans denominated in Dollars) or to Loans bearing interest at the Cost of Funds Rate plus the Applicable Rate for Eurocurrency Rate Loans (in the case of any other Loan), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

3.03 Inability to Determine Rates.

(a) If prior to the commencement of the Interest Period for any proposed Borrowing of Eurocurrency Rate Loans (x) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for determining the Eurocurrency Rate for the requested Interest Period with respect to a proposed Eurocurrency Rate Loan (whether denominated in Dollars or an Alternative Currency) or (y) if such Borrowing is of a particular Tranche of Loans, the Administrative Agent is advised by the Majority Tranche Lenders with respect to such Tranche that the Eurocurrency Rate for the requested Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their respective Loans included in such Borrowing for such Interest Period, then the Administrative Agent shall give notice thereof to the Borrower and the Lenders as promptly as practicable thereafter and, until the Administrative Agent (in the case of clause (y), upon the instruction of the Majority Tranche Lenders of the affected Tranche of Loans) notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be suspended. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the affected currency or currencies or, failing that, will be deemed to have converted such request into a request (a) for a Borrowing of (or conversion to) Base Rate Loans in the amount specified therein, in the case of Loans denominated in Dollars, or (b) for a Borrowing of (or conversion to) a Loan bearing interest at the Cost of Funds Rate plus the Applicable Rate with respect to Eurocurrency Rate Loans, in the case of any other Loan.

(b) If any event described in the first sentence of Section 3.03(a) occurs and results in the application of the Cost of Funds Rate, then at the request of the Administrative Agent, the Parent or the Borrower, the Administrative Agent, the Parent and the Borrower shall enter into negotiations for a period of no more than 30 days for the purpose of agreeing to a substitute basis for determining the rate of interest to be applied to the applicable Borrowing (and, to the extent required, any future Borrowings). Any substitute basis agreed upon shall be, with the consent of all Lenders, binding on all of the parties to this Agreement.

 

43


3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.

(a) Increased Costs Generally. If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e));

(ii) except as specifically provided in the last sentence of this Section 3.04(a), subject any Lender to any Tax of any kind whatsoever with respect to this Agreement or any Eurocurrency Rate Loan made by it, or change the basis of Taxation of payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender); or

(iii) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by such Lender;

and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered. For the avoidance of doubt, subsections (i) through (iv) above shall not apply to the extent any increased costs are (A) attributable to a Tax Deduction required by law to be made by any Loan Party or (B)(1) compensated for by Section 3.01(c) or (2) would have been compensated for by Section 3.01(c) but were not so compensated solely because (a) the relevant Tax is an Excluded Tax, (b) the loss, liability or cost is compensated for by an increased payment under Section 3.01(a) or (c) the loss, liability or cost would have been compensated for by an increased payment under Section 3.01(a) but was not so compensated solely because one of the exclusions in Section 3.01(h) applied.

(b) Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

(c) Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten days after receipt thereof.

(d) Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered

 

44


more than nine months prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

(e) Additional Reserve Requirements. The Borrower shall pay to each Lender, (i) as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), and (ii) as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any other central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which in each case shall be due and payable on each date on which interest is payable on such Loan; provided the Borrower shall have received at least ten days’ prior notice (with a copy to the Administrative Agent) of such additional interest or costs from such Lender. If a Lender fails to give notice ten days prior to the relevant Interest Payment Date, such additional interest or costs shall be due and payable ten days from receipt of such notice.

3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

(b) any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower;

(c) any failure by the Borrower to make payment of any Loan (or interest due thereon) on its scheduled due date or any payment thereof in a different currency than the currency in which it was borrowed; or

(d) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13;

including any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.

For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.

 

45


3.06 Mitigation Obligations; Replacement of Lenders.

(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or any Loan Party is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting Lender, or if any circumstance exists under the last paragraph of Section 10.01 that gives the Borrower the right to replace a Lender as a party hereto, the Borrower may replace such Lender in accordance with Section 10.13.

3.07 Survival. All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of the Administrative Agent.

ARTICLE IV.

CONDITIONS PRECEDENT

4.01 Conditions to Effectiveness. The effectiveness of this Agreement and the Commitments of each Lender hereunder are subject to satisfaction of the following conditions precedent:

(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer (or, with respect to any Loan Party other than the Borrower, by a Secretary or other Person duly appointed as an attorney-in-fact by a power of attorney granted by, or pursuant to an authorization of, the board of directors or similar body of such Loan Party) of the signing Loan Party, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:

(i) executed counterparts of this Agreement and the Guaranty Agreement, sufficient in number for distribution to each Agent and the Borrower;

(ii) Notes executed by the Borrower in favor of each Lender that requested Notes at least two Business Days prior to the Effective Date;

(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may

 

46


reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;

(iv) such documents and certifications as the Administrative Agent or its counsel may reasonably request to evidence that each Loan Party is duly organized or formed, validly existing and in good standing in its jurisdiction of organization; and

(v) a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of (A) Weil, Gotshal & Manges LLP, New York counsel to the Borrower and the other Loan Parties, substantially in the form of Exhibit H-1, (B) Matheson, local counsel to the Parent and WTWS, substantially in the form of Exhibit H-2, (C) Weil, Gotshal & Manges, local counsel to the Loan Parties organized or existing under the laws of England and Wales, substantially in the form of Exhibit H-3, (D) Baker & McKenzie Amsterdam N.V., local counsel to Willis Netherlands Holdings B.V., substantially in the form of Exhibit H-4, and (E) Appleby (Bermuda) Limited, local counsel to WTWB, substantially in the form of Exhibit H-5, and, in the case of each such opinion required by this clause (v), covering such other matters relating to the Loan Parties, the Loan Documents or the transactions contemplated hereby as the Required Lenders shall reasonably request, and the Parent and the Borrower hereby request such counsel to deliver such opinions.

(b) The representations and warranties of (i) the Parent and the Borrower contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects (or, if such representation or warranty is itself modified by materiality or Material Adverse Effect, it shall be true and correct in all respects) on and as of the Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.

(c) No Default or Event of Default shall exist.

(d) Since December 31, 2014 there shall not have occurred any events or changes that, individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect.

(e) (i) All fees required to be paid to any Agent on or before the Effective Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Effective Date shall have been paid.

(f) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel, if requested by the Administrative Agent) to the extent invoiced prior to the Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).

(g) Upon the reasonable request of any Lender made at least five Business Days prior to the Effective Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the USA PATRIOT Act, in each case at least three Business Days prior to the Effective Date.

 

47


Without limiting the generality of the provisions of Section 9.03(c), for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender, unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.

4.02 Conditions to Borrowing of the Tranche A Term Loans. The obligation of each Lender to make its Tranche A Term Loans available to the Borrower hereunder is subject to satisfaction of the following conditions precedent in addition to those specified in Section 4.04:

(a) To the knowledge of the Parent, as of the Gras Savoye Funding Date, the representations and warranties made by or on behalf of the sellers party to the Gras Savoye Acquisition Agreement pursuant thereto which are material to the interest of the Lenders in their capacities as such and the failure of which to be true shall permit the Willis Europe BV not to consummate the transactions thereunder, shall be true and correct in all respects on the Completion Date (as defined in the Gras Savoye Acquisition Agreement), except where expressly specified otherwise therein.

4.03 Conditions to Borrowing of the Tranche B Term Loans. The obligation of each Lender to make its Tranche B Term Loans available to the Borrower hereunder is subject to satisfaction of the following conditions precedent in addition to those specified in Section 4.04:

(a) The representations and warranties made by or on behalf of Towers Watson in the Towers Watson Merger Agreement which are material to the interest of the Lenders in their capacities as such and the failure of which to be true shall permit the Parent not to consummate the transactions thereunder, shall be true and correct in all respects.

(b) The Towers Watson Merger shall be consummated on the Towers Watson Funding Date by the Parent and its Affiliates.

4.04 Conditions to all Borrowings. The obligation of each Lender to honor any Borrowing Request (other than a Borrowing Request requesting only a conversion of Loans to the other Type, or a continuation of Eurocurrency Rate Loans) is subject to the following conditions precedent:

(a) The Specified Representations shall be true and correct in all material respects on and as of the date of such proposed Borrowing (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date).

(b) The Administrative Agent shall have received evidence reasonably satisfactory to it that such proposed Borrowing under the applicable Facility and the use of proceeds thereof is permitted under the Existing Credit Agreement and the WSI Credit Agreement.

(c) No Event of Default under Sections 8.01(a), (f) or (g) shall exist or would result from such proposed Borrowing or the proceeds thereof.

(d) The Administrative Agent shall have received a Borrowing Request in accordance with the requirements hereof.

 

48


ARTICLE V.

REPRESENTATIONS AND WARRANTIES

Each of the Parent and the Borrower represents and warrants to the Administrative Agent and the Lenders that:

5.01 Organization; Powers. Each of the Parent and its Subsidiaries is (a) duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization, (b) has all requisite power and authority to carry on its business as now conducted and (c) except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.

5.02 Authorization; Enforceability. The transactions contemplated hereby to be entered into by each Loan Party are within such Loan Party’s corporate powers and have been duly authorized by all necessary corporate and, if required, stockholder action. This Agreement has been duly executed and delivered by the Parent and the Borrower and constitutes, and each other Loan Document to which any Loan Party is to be a party, when executed and delivered by such Loan Party, will constitute, a legal, valid and binding obligation of the Parent, the Borrower or such other Loan Party (as the case may be), enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

5.03 Governmental Approvals; No Conflicts. The transactions contemplated hereby (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will not violate (i) any material applicable Law, (ii) the charter, by-laws or other Organization Documents of the Parent or any Subsidiary or (iii) any order of any Governmental Authority, (c) will not violate or result in a default under any material indenture, agreement or other material instrument binding upon the Parent or any Subsidiary or its assets, or give rise to a right thereunder to require any payment to be made by the Parent or any Subsidiary and (d) will not result in the creation or imposition of any Lien on any asset of the Parent or any Subsidiary pursuant to the terms of such material indenture, agreement or other material instrument.

5.04 Financial Condition; No Material Adverse Change.

(a) The Parent has heretofore furnished to the Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2014, reported on by Deloitte LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended September 30, 2015, certified by its chief financial officer. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Parent and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above.

(b) Since December 31, 2014, there has not occurred any event or change that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect.

 

49


5.05 Properties.

(a) Each of the Parent and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes and except where the failure to have such good title or valid leasehold interests, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

(b) Each of the Parent and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Parent and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

5.06 Litigation and Environmental Matters.

(a) There are no actions, suits or proceedings (including investigative proceedings) by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Parent or the Borrower, threatened against or affecting the Parent or any Subsidiary, that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters).

(b) Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, neither the Parent nor any Subsidiary (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability or (iii) has received notice of any claim with respect to any Environmental Liability.

5.07 Compliance with Laws; Absence of Default. Each of the Parent and its Subsidiaries is in compliance with all Laws applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is continuing.

5.08 Investment Company Status. Neither the Parent nor any Subsidiary is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

5.09 Taxes. Each of the Parent and its Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Parent or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so would not reasonably be expected to result in a Material Adverse Effect.

5.10 ERISA.

(a) No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations under each Pension Plan (based on the assumptions used for purposes of Accounting Standards Codification no. 715) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Pension Plan, and the present value of all accumulated benefit obligations of all underfunded Pension Plans (based on the assumptions used for

 

50


purposes of Accounting Standards Codification no. 715) did not, as of the date of the most recent audited financial statements reflecting such amounts, exceed the fair market value of the assets of all such underfunded Pension Plans, in each case, by an amount that has had, or would reasonably be expected to have, a Material Adverse Effect.

(b) The present value of all projected benefit obligations under the UK Pension Plan (based on the assumptions used for purposes of Accounting Standards Codification no. 715) did not, as of the date of the most recent audited financial statements reflecting such amounts, exceed the fair market value of the assets of the UK Pension Plan, except where any underfunding of the UK Pension Plan (based on the assumptions used for the purposes of Accounting Standards Codification no. 715) as of the date of the most recent audited financial statements would not reasonably be expected to have a Material Adverse Effect.

(c) Except for the UK Pension Plan, as of the Effective Date neither Parent nor any of its Subsidiaries is an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004) of a UK occupational pension scheme which is not a money purchase scheme (both such terms as defined in the Pension Schemes Act 1993) or is “connected” with or an “associate” of (as those terms are used in sections 38 and 43 of the Pensions Act 2004) such an employer, save where being an employer or being connected with or an associate of such an employer would not reasonably be expected to have a Material Adverse Effect.

(d) Neither the Parent nor any Subsidiary has been issued with a contribution notice or financial support direction by the UK Pensions Regulator or received any written communication from the UK Pensions Regulator that on its face is preparatory to the issue of a contribution notice or financial support direction.

5.11 Disclosure. Neither the Marketing Information nor any of the other reports, financial statements, certificates or other information furnished by or on behalf of the Parent or the Borrower to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or delivered on or prior to the Effective Date hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Parent and the Borrower represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.

5.12 Subsidiaries. Schedule 5.12 sets forth the name and jurisdiction of organization of, and the direct or indirect ownership interest of the Parent in, each Subsidiary, and identifies each Subsidiary that is a Guarantor, in each case as of the Effective Date.

5.13 Solvency. Immediately after the consummation of the transactions to occur on the Effective Date, (a) the fair value of the assets of each Loan Party, at a fair valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of each Loan Party will be greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) each Loan Party will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (d) each Loan Party will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted following the Effective Date; (e) no Loan Party, by reason of actual or anticipated financial difficulties, has commenced or intends to commence negotiations with one or more of its creditors with a view to rescheduling any of its

 

51


Indebtedness; and (f) no moratorium has been declared and, in the opinion of the Parent and the Borrower, no moratorium is reasonably likely to be declared in the foreseeable future, in each case, in respect of any Indebtedness of any Loan Party.

5.14 Use of Proceeds. No Loan Party is engaged, and none of them will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock or to refinance indebtedness originally incurred for such purpose.

5.15 Pari Passu. The Obligations rank at least pari passu with all other senior unsecured Indebtedness of the Loan Parties.

5.16 Deduction of Tax. The Borrower is not required to make any Tax Deduction from any payment under any Loan Document to a Lender which is (a) a UK Qualifying Lender (i) falling within clause (a)(i) of the definition of UK Qualifying Lender, (ii) except where a Direction has been given under section 931 of the ITA in relation to the payment concerned, falling within clause (a)(ii) of the definition of UK Qualifying Lender, or (iii) falling within clause (b) of the definition of UK Qualifying Lender, or (b) a UK Treaty Lender and the payment is one specified in a direction given by the Commissioners of Revenue & Customs under Regulation 2 of the United Kingdom Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488).

5.17 OFAC; USA PATRIOT Act; FCPA; UK Bribery Act. (a) (i) None of the Parent or any of its Subsidiaries or, to the knowledge of the Parent, any director or officer of any of the foregoing is a Sanctioned Person or otherwise the target of Sanctions; (ii) none of the Parent or any of its Subsidiaries will, directly or indirectly, use the proceeds of the Loans or otherwise make available such proceeds for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country; (iii) the Parent and each Subsidiary of the Parent are in compliance with any Sanctions applicable to the Parent or such Subsidiary in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in the Parent or its Subsidiaries being designated as a Sanctioned Person pursuant to any Sanctions applicable to such Person and (iv) the Parent and each of its Subsidiaries has implemented and maintains in effect and enforces policies and procedures reasonably designed to ensure compliance by the Parent, its Subsidiaries and their respective directors, officers, employees and agents with Sanctions applicable to such Persons.

(b) To the extent applicable, each Loan Party is in compliance, in all material respects, with the USA PATRIOT Act.

(c) (i) No part of the proceeds of any Loan, will be used, directly or, to the knowledge of the Parent or the Borrower, indirectly either for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the U.S. Foreign Corrupt Practices Act of 1977 (the “FCPA”) or for payments which would, if any relevant act or omission took place in the United Kingdom, constitute an offense under the U.K. Bribery Act 2010 (the “UK Bribery Act”) and (ii) neither the Parent nor any of its Subsidiaries is otherwise in violation of the FCPA or the UK Bribery Act in any material respect

(d) The representations and warranties in clauses (iii) and (iv) of Section 5.17(a) above made by or on behalf of any German Person are only made if and to the extent that benefiting from these representations does not result in a violation of or conflict with Section 7 German Foreign Trade Regulation (Außenwirtschaftsverordnung), any provision of Council Regulation (EC) 2271/1996 or any similar anti-boycott statute.

 

52


ARTICLE VI.

AFFIRMATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder or any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, the Parent and the Borrower covenant and agree with the Lenders that:

6.01 Financial Statements; Ratings Change and Other Information. The Parent will furnish to the Administrative Agent and each Lender:

(a) as soon as available and in any event within 120 days (or, if earlier, the date that is fifteen (15) days after the reporting date for such information required by the SEC) after the end of each fiscal year of the Parent, its audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Deloitte LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any material qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;

(b) as soon as available and in any event within 60 days (or, if earlier, the date that is fifteen (15) days after the reporting date for such information required by the SEC) after the end of each of the first three fiscal quarters of each fiscal year of the Parent, its consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer of the Parent as presenting fairly in all material respects the financial condition and results of operations of the Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;

(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a Compliance Certificate executed by a Financial Officer of the Parent (i) certifying as to whether a Default that has not been disclosed in any prior Compliance Certificate (unless such Default exists anew or continues to exist at such time, in which case it shall be included on such Compliance Certificate) has occurred and, if such Default has occurred or exists, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed quarterly calculations of the financial covenants set forth in, and demonstrating compliance with, Sections 7.08(a) and (b), (iii) stating whether any Material Acquisition has occurred during the period covered by such financial statements and, if so, setting forth the changes to the amounts referred to in Section 7.05(d) as a result of each such Material Acquisition, together with a reasonably detailed explanation of the calculation of such changes and (iv) stating whether any change in GAAP or in the application thereof that has not been disclosed in any prior Compliance Certificate has occurred since the date of the Audited Financial Statements referred to in Section 5.04 that would be relevant in the calculation of any of the financial covenants set forth in Sections 7.08(a) and (b) and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;

(d) concurrently with any delivery of financial statements under clause (a) above, a report from the accounting firm that reported on such financial statements, stating that (i) the financial information in the certificate prepared by a Financial Officer of the Parent pursuant to clause (c) above

 

53


has been accurately extracted from the sources identified therein and, where applicable, agrees with the underlying accounting records, (ii) the calculations of the financial covenants in Sections 7.08(a) and (b) set forth in such certificate are arithmetically correct and (iii) the financial information set forth in such certificate is, as to elements and composition, presented in accordance with the relevant accounting definitions set forth in Section 1.01;

(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Parent or any Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Parent to its shareholders generally, as the case may be;

(f) promptly after S&P or Moody’s shall have announced a change in the Debt Rating, written notice of such change;

(g) promptly following a request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act; and

(h) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Parent or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.

Documents required to be delivered pursuant to Section 6.01(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Parent or the Borrower posts such documents, or provides a link thereto on the Parent’s or the Borrower’s website on the Internet at the website address listed on Schedule 10.02; (ii) on which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (EDGAR); or (iii) on which such documents are posted on the Parent’s or the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Parent or the Borrower, as applicable, shall deliver paper copies of such documents to the Administrative Agent or any Lender upon the written request of such Person and until a written request to cease delivering paper copies is given by such Person and (ii) the Parent or the Borrower, as applicable, shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Parent and the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 6.01(c) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Parent or the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

Each of the Parent and the Borrower hereby acknowledges that (a) the Administrative Agent and/or one or more of the Agents will make available to the Lenders materials and/or information provided by or on behalf of the Parent or the Borrower, as applicable, hereunder and under the other Loan Documents (collectively, the “Parent and Borrower Materials”) by posting the Parent and Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive

 

54


material non-public information with respect to the Parent, the Borrower or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each of the Parent and the Borrower hereby agrees that (w) all Parent and Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Parent and Borrower Materials “PUBLIC,” the Parent and the Borrower shall be deemed to have authorized the Agents, the Lenders to treat such Parent and Borrower Materials as not containing any material non-public information with respect to the Parent, the Borrower or their respective securities for purposes of United States Federal and state securities Laws (provided that to the extent such Parent and Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Parent and Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Agents shall be entitled to treat any Parent and Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information”. Notwithstanding the foregoing, the Borrower shall not be under any obligation to mark any Parent and Borrower Materials “PUBLIC”.

6.02 Notices of Material Events. The Parent or the Borrower will furnish to the Administrative Agent and each Lender prompt written notice of the following:

(a) the occurrence of any Default;

(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any Affiliate thereof that would reasonably be expected to result in a Material Adverse Effect;

(c) the occurrence of any ERISA Event or imposition of a contribution notice or financial support direction on the Parent or any of its Subsidiaries by the UK Pensions Regulator that, alone or together with any other ERISA Events that have occurred and are continuing, would reasonably be expected to result in a Material Adverse Effect; and

(d) any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.

Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other Responsible Officer of the Parent or the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

6.03 Existence; Conduct of Business.

(a) The Parent and the Borrower will, and will cause each of the other Loan Parties to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 7.04.

(b) The Parent and the Borrower will, and will cause each of the other Subsidiaries to, continue to engage (including after giving effect to any acquisition) only in a business of the type that does not represent a fundamental change in the character of the business of the Parent and its Subsidiaries, taken as a whole, conducted by the Parent and its Subsidiaries on the date of this Agreement, and businesses reasonably related thereto.

 

55


6.04 Payment of Taxes. The Parent and the Borrower will, and will cause each of the other Subsidiaries to, pay its Tax liabilities before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings and for which the Parent, the Borrower or such other Subsidiary, as applicable, has set aside on its books adequate reserves with respect thereto in accordance with GAAP or (b) the failure to make payment would not reasonably be expected to result in a Material Adverse Effect.

6.05 Maintenance of Properties; Insurance. The Parent and the Borrower will, and will cause each of the other Subsidiaries to, (a) keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, and (b) maintain in full force and effect, with insurance companies that the Parent and the Borrower believe (in the good faith judgment of the management of the Parent and the Borrower) are financially sound and responsible at the time the relevant coverage is placed or renewed, insurance in at least such amounts and against at least such risks (and with such risk retentions) as are usually insured against in the same general area by companies engaged in the same or a similar business.

6.06 Books and Records; Inspection Rights. The Parent and the Borrower will, and will cause each of the other Subsidiaries to, keep proper books of record and account in which full, true and correct entries are made in all material respects of all dealings and transactions in relation to its business and activities. The Parent will, and will cause each of its Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested.

6.07 Compliance with Laws. The Parent and the Borrower will, and will cause each of the other Subsidiaries to, comply with, and not commit any offense under, all Laws, rules, regulations and orders of any Governmental Authority applicable to it or its property (including to the extent applicable to it or its property, (a) Environmental Laws and the USA PATRIOT Act, and (b) Sanctions, the FCPA and the UK Bribery Act) other than compliance with any such Law where the failure to comply, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, with the exception of compliance with Sanctions, the FCPA and the UK Bribery Act (to the extent each are applicable to such Person), compliance with which shall be in all material respects. The undertaking above with respect to Sanctions made by or on behalf of any German Person is only made if and to the extent that benefiting from these undertakings does not result in a violation of or conflict with Section 7 German Foreign Trade Regulation (Außenwirtschaftsverordnung), any provision of Council Regulation (EC) 2271/1996 or any similar anti-boycott statute.

6.08 Use of Proceeds. The proceeds of (a) the Tranche A Facility are to be used solely to fund the acquisition of the remaining equity interests of Gras Savoye not owned by the Parent and its Subsidiaries, including to repay certain Indebtedness of Gras Savoye and its Subsidiaries and (b) the Tranche B Facility are to be used solely to (i) to repay certain Indebtedness of Towers Watson and its Subsidiaries, (ii) to pay the costs and expenses incurred by the Borrower in connection with the transactions contemplated by this Agreement and (iii) for working capital, capital expenditures, other permitted acquisitions and other lawful corporate purposes of the Parent and its Subsidiaries. Notwithstanding anything to the contrary in this Section or in any other Loan Document, the Parent and the Borrower agree that they will ensure, and will cause their Subsidiaries to ensure, that no part of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.

 

56


6.09 Gras Savoye Acquisition.

(a) After funding of the Tranche A Term Loan, the Borrower and the other Subsidiaries of the Parent shall retain direct ownership and control of the proceeds thereof at all times prior to the Gras Savoye Acquisition Date.

(b) The Parent and the Borrower will either (i) consummate the Gras Savoye Acquisition in accordance with this Section 6.09 no later than fourteen (14) days following the Gras Savoye Funding Date or (ii) make a mandatory prepayment in the Outstanding Amount of the Tranche A Term Loans in respect of such Tranche A Term Loans, together with all accrued and unpaid interest thereon, no later than seventeen (17) days after the Gras Savoye Funding Date.

(c) On the Gras Savoye Acquisition Date, the Parent will deliver a certificate to the Administrative Agent in the form of Exhibit G signed by a Responsible Officer of the Parent and the certifications contained therein shall be true in all respects.

ARTICLE VII.

NEGATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, the Parent and the Borrower covenant and agree with the Lenders that:

7.01 Subsidiary Indebtedness. The Parent will not permit any Subsidiary that is not a Loan Party to create, incur, assume or permit to exist any Indebtedness (including pursuant to any Guarantee of Indebtedness of the Parent or another Subsidiary), except:

(a) Indebtedness owing to the Parent or another Subsidiary;

(b) Guarantees of Indebtedness of another Subsidiary that is not a Loan Party, to the extent such Indebtedness is permitted by this Section 7.01;

(c) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (ii) in the case of any other such Indebtedness, such Indebtedness shall not be Guaranteed by the Parent or any other Subsidiary, except Indebtedness that, in the aggregate, but without duplication, does not exceed $25,000,000 may be Guaranteed;

(d) Indebtedness incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (d) shall not exceed $25,000,000 at any time outstanding;

(e) Indebtedness incurred in relation to arrangements made in the ordinary course of business to facilitate the operation of bank accounts on a net balance basis;

 

57


(f) short term Indebtedness from banks incurred in the ordinary course of business pursuant to a facility required in order to comply with rules and regulations issued from time to time by regulatory authorities; provided that such compliance is required for the applicable Subsidiary to remain licensed to conduct its business;

(g) Indebtedness incurred by WSI the proceeds of which are used to make Investments in any Underwritten Securities in the ordinary course of WSI’s business in an aggregate principal amount not to exceed $800,000,000 at any time outstanding minus the cost of Investments made pursuant to Section 7.03 that were not made using the proceeds of Indebtedness;

(h) other Indebtedness in an aggregate principal amount (for all such Subsidiaries combined, but without duplication) not exceeding $200,000,000 (provided that if the Towers Watson Merger occurs, at any time there is any Indebtedness outstanding under the Towers Watson Facility, such aggregate principal amount shall not exceed $100,000,000) at any time outstanding; and

(i) Indebtedness outstanding under the Towers Watson Facility; provided that such Indebtedness shall not be guaranteed by the Parent or any other Subsidiary (other than Towers Watson and its Subsidiaries).

7.02 Liens. The Parent and the Borrower will not, and will not permit any other Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:

(a) Permitted Encumbrances;

(b) any Lien on any property or asset of the Parent or any Subsidiary existing on the date hereof and set forth in Schedule 7.02; provided that (i) such Lien shall not apply to any other property or asset of the Parent or any Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the date hereof and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

(c) any Lien existing on any property or asset prior to the acquisition thereof by the Parent or any Subsidiary after the date hereof or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the Parent or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

(d) Liens on fixed or capital assets acquired, constructed or improved by the Parent or any Subsidiary; provided that (i) such security interests secure only Indebtedness incurred to finance the acquisition, construction or improvement of such fixed or capital assets (including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of such assets) and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof, (ii) such security interests and the Indebtedness secured thereby are incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of the Parent or any Subsidiary;

 

58


(e) charges or Liens in favor of a regulatory authority or a third party, in each case, as contemplated by the rules or regulations issued by a regulatory authority and with which the applicable Subsidiary is required to comply in order to remain licensed to conduct its business;

(f) Liens over credit balances created in favor of any bank in order to facilitate the operation of bank accounts on a net balance basis or in connection with any Bankers Automated Clearing Services facility used in the ordinary course of business;

(g) Liens comprised by escrow arrangements entered into in connection with asset sales, transfers or other dispositions permitted by Section 7.04; and

(h) other Liens; provided that the sum of the aggregate principal amount of obligations secured by such Liens plus the aggregate amount of Attributable Indebtedness in respect of sale and leaseback transactions permitted by Section 7.05(c) shall not, at any time, exceed 10% of Net Worth.

7.03 Investments. The Parent and the Borrower will not permit WSI or any other Subsidiary that is a licensed broker-dealer to make Investments in any Underwritten Securities in the ordinary course of WSI’s or such Subsidiary’s business in an aggregate amount exceeding at any one time outstanding $800,000,000 (including the Investments made with the proceeds of Indebtedness incurred pursuant to Section 7.01(g)); provided that such Investments shall not be made or maintained using proceeds of Borrowings of the Loans in an aggregate amount exceeding $400,000,000 at any one time outstanding.

7.04 Fundamental Changes. The Parent and the Borrower will not, and will not permit any other Loan Party to, either (x) merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or (y) liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:

(a) any Subsidiary may merge with or into the Parent, the Borrower or any other Loan Party in a transaction in which the Parent, the Borrower or such Loan Party, as the case may be, is the surviving entity; provided that (i) the Parent and the Borrower will not merge with or into each other and (ii) if the Parent or the Borrower merges with any other Loan Party, the Parent or the Borrower, as the case may be, must be the surviving entity; and

(b) any Person may merge or consolidate with or into the Parent, the Borrower or any other Loan Party in a transaction in which the Parent, the Borrower or such Loan Party, as the case may be, is not the surviving entity; provided that (i)(A) in the case of a Person merging or consolidating with or into the Borrower, the Person formed by or surviving any such merger or consolidation shall be a corporation organized or existing under the laws of the jurisdiction in which the Borrower is organized and (B) in the case of a Person merging or consolidating with or into the Parent or any other Loan Party other than the Borrower, the Person formed by or surviving any merger or consolidation shall be a corporation organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof or, in the case of a merger or consolidation involving the Parent, the laws of the jurisdiction in which the Parent is organized (such Person being herein referred to as the “Successor Entity”), (ii) the Successor Entity shall expressly assume all the obligations of the Parent, the Borrower or the applicable Loan Party, as the case may be, under the Loan Documents to which the Parent, the Borrower or such Loan Party, as applicable, is a party, pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iii) if such merger or consolidation involves the Borrower, then each Guarantor, unless it is the other party to such merger or consolidation, shall have (by a supplement to the Guaranty Agreement) confirmed that its Guarantee shall apply to all of the Successor Entity’s obligations under this Agreement, (iv) if requested by the Administrative Agent, the Administrative Agent shall have received an opinion of counsel reasonably satisfactory to the

 

59


Administrative Agent to the effect that the applicable Loan Documents are legal, valid, binding and enforceable obligations of the Successor Entity and (v) this clause (b) shall not be construed to permit the Borrower to merge with or into the Parent.

In the case of any such merger of the Parent or the Borrower in accordance with clause (b) above, the Successor Entity shall be deemed to be the Parent or the Borrower, as applicable, for all purposes of the Loan Documents. Notwithstanding anything to the contrary herein, the Parent will not engage, and will not permit the Borrower to engage, in any transaction that would reduce the percentage of Equity Interests owned by the Parent in the Borrower, except for (x) sales, transfers and other disposals of such Equity Interests to directors, officers or employees of the Borrower pursuant to any employee stock ownership plan or similar plan for the benefit of directors, officers or employees of the Borrower and (y) the issuance of such Equity Interests as consideration for any acquisition from a third party; provided that following any such issuance of Equity Interests to a third party, no Change in Control shall have occurred and the majority of the seats (other than vacant seats) on the board of directors of the Borrower shall be occupied by Persons nominated by the board of directors of the Borrower or the Parent or appointed by directors so nominated.

7.05 Asset Sales. The Parent and the Borrower will not, and will not permit any other Subsidiary to, Dispose of any asset, including any Equity Interest owned by it, except:

(a) Dispositions in the ordinary course of business;

(b) Dispositions to the Parent or a Subsidiary; provided that in the case of a Disposition by a Loan Party to a Subsidiary that is not a Loan Party, such Disposition shall be on fair and reasonable terms substantially as favorable to the Loan Party and such Subsidiary as would be obtainable by the Loan Party and such Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate;

(c) Dispositions pursuant to sale and leaseback transactions permitted by Section 7.06(a);

(d) Dispositions of assets that are not permitted by any other clause of this Section 7.05; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed in reliance upon this clause (d) shall not exceed $1,100,000,000 during any fiscal year and shall not exceed $2,750,000,000 during the period from and including the Effective Date to but excluding the Maturity Date; provided, further that in the event, and on each occasion, that any Material Acquisition is consummated after the Effective Date, each of the two amounts set forth in the immediately preceding proviso shall be increased by an amount equal to 25% of the value of the assets acquired pursuant to such Material Acquisition (valued based upon the amount at which such assets would be reflected on a balance sheet of the Parent and its Subsidiaries prepared on a consolidated basis in accordance with GAAP after giving effect to such Material Acquisition); and

(e) Any Disposition as part of the Towers Watson Restructuring Transactions.

provided that all Dispositions permitted hereby (other than those permitted by clause (a) or (b) above) shall be made for full fair value and on an arm’s length basis, as reasonably determined in good faith by the Parent or the Borrower, taking into account all relevant considerations. Any merger or consolidation of a Subsidiary with or into any other Person that results in such Subsidiary ceasing to be a Subsidiary or the Parent owning a reduced percentage of the Equity Interests in such Subsidiary shall, in each case, be treated as a Disposition of such Subsidiary (or the relevant portion thereof) for purposes of this Section 7.05.

 

60


7.06 Sale and Leaseback Transactions. The Parent and the Borrower will not, and will not permit any other Subsidiary to, enter into any arrangement, directly or indirectly, whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property sold or transferred, except:

(a) any such sale of any fixed or capital assets that is made for cash consideration in an amount not less than the cost of such fixed or capital asset and is consummated within 180 days after the Parent or such Subsidiary acquires or completes the construction of such fixed or capital asset;

(b) any such sale of the property listed on Schedule 7.06; and

(c) any other such sale if, after giving effect thereto, the Attributable Indebtedness in respect of the applicable sale and leaseback transaction is within the limits set forth in Section 7.02(h) (after giving effect to all such sale and leaseback transactions and applicable Liens).

7.07 Restricted Payments. The Parent and the Borrower will not, and will not permit any other Subsidiary to, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:

(a) each Subsidiary may make Restricted Payments to the Parent or another Subsidiary, and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;

(b) the Parent and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;

(c) the Parent and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests;

(d) the Parent may declare or pay ordinary (as opposed to special) cash dividends to its stockholders in the ordinary course of business; and

(e) the Parent and its Subsidiaries may make other Restricted Payments that are not otherwise permitted by any other clause of this Section 7.07 in an unlimited amount so long as, both before and after giving effect to any such Restricted Payment (and any Indebtedness incurred or repaid in connection therewith) the pro forma Consolidated Leverage Ratio is no greater than 3.00 to 1.00.

7.08 Financial Covenants.

(a) Consolidated Cash Interest Coverage Ratio. The Parent and the Borrower will not permit the Consolidated Cash Interest Coverage Ratio as of the end of any fiscal quarter of the Parent to be less than 4.00 to 1.00.

(b) Consolidated Leverage Ratio. The Parent and the Borrower will not permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Parent to be greater than 3.25 to 1.00; provided that, upon the written request of the Borrower (such request, which shall include a listing of the acquisitions so made, a “Covenant Reset Request”), but without any action on the part of the Administrative Agent or any Lender, at any time where during the prior fifteen (15) month period the

 

61


Borrower can demonstrate that it and/or any other Subsidiaries of the Parent have made acquisitions whose aggregate consideration equals or exceeds the Requisite Qualified Acquisition Threshold (without duplication of any acquisition that was included in any previous Covenant Reset Request), the maximum Consolidated Leverage Ratio permitted under this Section 7.08(b) shall be automatically increased from 3.25 to 1.00 to 3.50 to 1.00 for the last day of each fiscal quarter of the Covenant Reset Period related to such Covenant Reset Request; provided, further, that the Borrower shall provide to the Administrative Agent such details with respect to such acquisitions as the Administrative Agent, in its reasonable discretion, shall request; provided, further, that after the end of each Covenant Reset Period, the Borrower shall deliver to the Administrative Agent an executed Compliance Certificate that shall evidence the Borrower’s compliance with a Consolidated Leverage Ratio of 3.25 to 1.00 for a full fiscal quarter following the end of such Covenant Reset Period before becoming entitled to make an additional Covenant Reset Request (which, for the avoidance of doubt, must nonetheless comply with the other requirements of this Section 7.08(b)).

7.09 Amendments to the Towers Watson Facility. The Parent shall not permit Towers Watson or any of its Subsidiaries to amend the Towers Watson Facility in any manner materially adverse to the interests of the Lenders in their capacities as such without the consent of the Required Lenders.

7.10 Sanctions; Use of Proceeds. None of the Parent, its Subsidiaries or the Borrower will, directly or indirectly, use the proceeds of the Loans or otherwise make available such proceeds (a) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country or (b) in any manner that would result in the violation of Sanctions by any Person, including any Person participating in the Loans.

ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES

8.01 Events of Default. Any of the following shall constitute an “Event of Default”:

(a) Non-Payment. Either (i) the Borrower shall fail to pay any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise or (ii) the Borrower shall fail to pay any interest on any Loan, or any fee or any other amount (other than an amount referred to in subclause (i) of this clause (a)) payable under this Agreement, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three Business Days; or

(b) Specific Covenants. The Parent or the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 6.02, 6.03 (with respect to the existence of the Parent or the Borrower), 6.08 or 6.09 or in Article VII; or

(c) Other Defaults. Any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in clause (a) or (b) of this Article), and, if such failure is capable of remedy, such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender); or

(d) Representations and Warranties. Any representation or warranty made or deemed made by or on behalf of the Parent, the Borrower or any other Subsidiary in or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (or, with respect to any representation or warranty modified by materiality or Material Adverse Effect, in any respect) when made or deemed made; or

 

62


(e) Cross-Default. Either (i) the Parent or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness or Material Swap Obligations, when and as the same shall become due and payable or (ii) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (e) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; or

(f) Involuntary Insolvency Proceedings, Etc. An involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief (including the suspension of payments or a moratorium of any indebtedness) in respect of the Parent or any Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, administrator, conservator or similar official for the Parent or any Subsidiary or for a substantial part of its assets, and, in any such case, if such proceeding or petition has been commenced under Federal or state bankruptcy, insolvency, receivership or similar law, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered; or

(g) Voluntary Insolvency Proceedings, Etc. The Parent or any Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization, administration or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (f) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Parent or any Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing; or

(h) Inability to Pay Debts. The Parent or any Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due; or

(i) Judgments. One or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (to the extent not covered by insurance provided by a carrier that is not disputing coverage) shall be rendered against the Parent, any Subsidiary or any combination thereof and the same shall remain unpaid or undischarged, in each case for a period of 60 consecutive days during which period execution shall not be effectively stayed; or any formal legal process has been commenced by a judgment creditor to attach or levy upon any material assets of the Parent or any Subsidiary to enforce any such judgment; or

(j) ERISA. An ERISA Event shall have occurred that, in the reasonable opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, would reasonably be expected to result in a Material Adverse Effect; or

 

63


(k) Invalidity of Loan Documents. Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or the Parent or any Subsidiary (including any Loan Party) contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document;

(l) Change in Control. There occurs any Change in Control; or

(m) Gras Savoye. If the Gras Savoye Acquisition is consummated, the operations of the Sudan branch of Gras Savoye Egypt SAE (the “Sudan Branch”) are not completely shut down or divested from the operations of Gras Savoye or its Subsidiaries prior to the consummation of the Gras Savoye Acquisition such that upon and after such consummation, the Parent or any of its Subsidiaries holds at any time any legal or beneficial ownership, whether directly or indirectly, in the Sudan Branch.

8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:

(a) declare the commitment of each Lender to make Loans to be terminated, whereupon such commitments shall be terminated;

(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Parent and the Borrower; and/or

(c) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents;

provided that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans shall automatically terminate, and the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable in each case without further act of the Administrative Agent or any Lender.

8.03 Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable), any amounts received on account of the Obligations shall, subject to the provisions of Section 2.16, be applied by the Administrative Agent in the following order:

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;

Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including fees, charges and disbursements of counsel to the respective Lenders arising under the Loan Documents and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;

 

64


Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and other Obligations, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;

Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Lenders in proportion to the respective amounts described in this clause Fourth held by them; and

Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.

ARTICLE IX.

ADMINISTRATIVE AGENT

9.01 Appointment and Authorization of Agents. Each of the Lenders hereby irrevocably appoints Barclays to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Agents and the Lenders, and neither the Borrower nor any other Loan Party shall have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to any Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties.

9.02 Rights as a Lender. The Person serving as the Administrative Agent shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent hereunder, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as such Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, the Parent or any Subsidiary or other Affiliate thereof as if such Person were not an Agent hereunder and without any duty to account therefor to the Lenders.

9.03 Exculpatory Provisions.

(a) No Agent shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and the duties of the Administrative Agent hereunder shall be administrative in nature. Without limiting the generality of the foregoing, no Agent shall: (i) be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; (ii) have any duty to take any discretionary action or exercise any discretionary powers, except (in the case of the Administrative Agent) discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders or, with respect to any matter that affects only one Tranche, the Majority Tranche Lenders of that Tranche (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender

 

65


in violation of any Debtor Relief Law; and (iii) except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Parent, the Borrower or any of their respective Affiliates that is communicated to or obtained by such Agent or any of its Affiliates in any capacity.

(b) The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders or, with respect to any matter that affects only one Tranche, the Majority Tranche Lenders of that Tranche (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Article VIII and Sections 10.01 and 10.03), or (ii) in the absence of its own gross negligence or willful misconduct to the extent that such determination is made by a final and non-appealable judgment of a court of competent jurisdiction. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default unless and until the Administrative Agent shall have received written notice from a Lender or the Borrower referring to this Agreement, describing such Default and stating that such notice is a “notice of default.”

(c) No Agent-Related Person shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than (in the case of the Administrative Agent) to confirm receipt of items expressly required to be delivered to it

9.04 Reliance by Administrative Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to any Borrowing that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to any such Borrowing. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower or the Parent), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Facilities as well as activities as Administrative Agent.

9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation,

 

66


the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders, appoint, in consultation with the Borrower, a successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any Cash Collateral held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring Administrative Agent may (but shall not be obligated to) continue to hold such Cash Collateral until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.

9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon any Agent-Related Person or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent-Related Person or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

9.08 Duties of Other Agents. None of the Agents (other than the Administrative Agent) shall have any rights, powers, obligations, liabilities, responsibilities or duties under this Agreement or any of the other Loan Documents, except in its capacity as a Lender.

9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

(i) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file

 

67


such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due to the Lenders and the Administrative Agent under Sections 2.09 and 10.04) allowed in such judicial proceeding; and

(ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 10.04.

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

9.10 Withholding. To the extent required by any applicable Law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any Tax. If the IRS or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, Tax ineffective or for any other reason, or if the Administrative Agent reasonably determines that a payment was made to a Lender pursuant to this Agreement without deduction of applicable withholding Tax from such payment, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any penalties or interest and together with all reasonable costs and out-of-pocket expenses (including reasonable fees and expenses of counsel) incurred in connection therewith.

9.11 Guaranty Matters. The Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Guarantor from its obligations under the Guaranty Agreement if such Person ceases to be a Subsidiary of the Parent as a result of a transaction permitted hereunder. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor from its obligations under the Guaranty Agreement pursuant to this Section 9.11.

9.12 Survival. All provisions of this Article IX shall survive termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations hereunder.

ARTICLE X.

MISCELLANEOUS

10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders (or, with respect to any matter that affects only one Tranche, the Majority Tranche Lenders of that Tranche) (or the

 

68


Administrative Agent with the consent of the Required Lenders (or, with respect to any matter that affects only one Tranche, the Majority Tranche Lenders of that Tranche)) and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no such amendment, waiver or consent shall:

(a) waive any condition set forth in Section 4.01 (other than Section 4.01(b)(i) or (c), which may be waived solely by the Person to whom any such amounts are due) without the written consent of each Lender;

(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender;

(c) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;

(d) reduce the principal of, or the rate of interest specified herein on, any Loan, or (subject to clause (v) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or to reduce any fee payable hereunder;

(e) change Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;

(f) change any provision of this Section 10.01 or the definition of “Required Lenders” or “Majority Tranche Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender directly affected thereby;

(g) release all or substantially all of the value of the Guaranty Agreement without the written consent of each Lender, except to the extent the release of any Guarantor is permitted pursuant to Section 9.11 (in which case such release may be made by the Administrative Agent acting alone);

(h) impose any greater restriction on the ability of any Lender under a Tranche to assign any of its rights or obligations hereunder without the written consent of the Majority Tranche Lenders of such Tranche; or

(i) waive any condition set forth in Section 4.02, 4.03 or 4.04 as to any Borrowing after the Effective Date without the written consent of the Majority Tranche Lenders with respect to the applicable Tranche;

and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document and (ii) Section 10.06(h) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of such amendment, waiver or other

 

69


modification. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended, the maturity of any of its Loans may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case, without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.

If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each similarly situated Lender or such Lender and that has been approved by the Required Lenders or the Majority Tranche Lenders, as applicable, the Borrower may replace such non-consenting Lender in accordance with Section 10.13; provided that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by the Borrower to be made pursuant to this paragraph).

In addition, notwithstanding anything in this Section to the contrary, if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical nature, in each case, in any provision of any Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision, and, in each case, such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders to the Administrative Agent within ten Business Days following receipt of notice thereof.

10.02 Notices; Effectiveness; Electronic Communications.

(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier or (subject to subsection (b) below) email as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

(i) if to the Parent, the Borrower or the Administrative Agent to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 10.02; and

(ii) if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire.

Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).

 

70


(b) Electronic Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender pursuant to Article II, if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that, if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT-RELATED PERSONS DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE PARENT AND BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE PARENT AND BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT-RELATED PERSON IN CONNECTION WITH THE PARENT AND BORROWER MATERIALS OR THE PLATFORM. In no event shall any Agent-Related Person have any liability to the Parent, the Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Parent’s, the Borrower’s or the Administrative Agent’s transmission of Parent and Borrower Materials through the Internet (including the Platform), except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent-Related Person; provided that in no event shall any Agent-Related Person have any liability to the Parent, the Borrower, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

(d) Change of Address, Etc. Each of the Parent, the Borrower and the Administrative Agent may change its address, telecopier, e-mail or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier, e-mail or telephone number for notices and other communications hereunder by notice to the Borrower and the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and e-mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Parent and Borrower Materials that are not made available through the “Public Side

 

71


Information” portion of the Platform and that may contain material non-public information with respect to the Parent or the Borrower or their respective securities for purposes of United States Federal or state securities laws.

(e) Reliance by Administrative Agent and Lenders. The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices purportedly given by or on behalf of the Parent or the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Parent and the Borrower shall each indemnify the Administrative Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Parent or the Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders; provided that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b) and (c) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

10.04 Expenses; Indemnity; Damage Waiver.

(a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Agents and each of their respective Affiliates (including the actual, reasonable and documented fees, charges and disbursements of one counsel for the Agents, taken as a whole, and, solely in the case of a conflict of interest, one additional counsel for each group of similarly affected Persons taken as a whole (and, if reasonably necessary, of one local counsel in any relevant material jurisdiction or one special counsel in any relevant area of expertise for all such similarly affected Persons taken as a whole)), in connection with the syndication of the Facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the

 

72


transactions contemplated hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender (including the fees, charges and disbursements of any counsel for the Administrative Agent or any Lender), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans.

(b) Indemnification by the Borrower. Each of the Parent and the Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the actual, reasonable and documented fees, charges and disbursements of one counsel to the Indemnitees, taken as a whole and, solely in the case of a conflict of interest, one additional counsel to each group of similarly affected Indemnitees, taken as a whole (and, if reasonably necessary, of one local counsel in any relevant material jurisdiction or one special counsel in any relevant area of expertise to each group of similarly affected Indemnitees, taken as a whole) and settlement costs) incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Parent or any of its Subsidiaries, or any Environmental Liability related in any way to the Parent or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party or any of the Borrower’s or such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee, (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for material breach of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction or (z) result from a dispute solely amongst the Indemnitees (other than claims against an Indemnitee in its capacity as Administrative Agent or as an Arranger) not arising out of any act or omission of the Parent, the Borrower, or any Subsidiary; provided further that this Section 10.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim.

(c) Reimbursement by Lenders. To the extent that the Parent and the Borrower for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined using the Dollar Equivalent amount of the aggregate amount of Term Loans and Commitments outstanding as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(e).

 

73


(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, none of the Parent, the Borrower, the Administrative Agent or any Lender shall assert, and each of them hereby waives, any claim against any Person party to this Agreement or against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof; provided that such waiver of special, indirect, consequential or punitive damages shall not limit the indemnification obligations of the Borrower under this Section, to the extent such damages would otherwise be subject to indemnification. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.

(e) Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.

(f) Survival. The agreements in this Section shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.

10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

10.06 Successors and Assigns.

(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (x) neither the Borrower nor the Parent may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender; provided that a merger or consolidation that complies with Section 7.04 shall not be construed as an assignment or transfer for purposes of this clause (x) and (y) no Lender may assign or otherwise

 

74


transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (e) of this Section, (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section or (iv) to an SPC in accordance with the provisions of subsection (g) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (e) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans; provided that any such assignment shall be subject to the following conditions:

(i) Minimum Amounts.

(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under any Tranche and the Loans at the time owing to it under any Tranche, or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.

(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis.

(iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:

(A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed; provided that the Borrower will be deemed to have consented to such assignment if its response is not received by the Administrative Agent within five days of its receipt of notice of such assignment) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; and

(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for any assignment under any Facility to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund;

 

75


(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Following receipt by it of an Assignment and Assumption, the Administrative Agent shall promptly, and in any event within 10 days of receipt, deliver to the Borrower a fully executed copy of such Assignment and Assumption.

(v) No Assignment to Certain Persons. No such assignment shall be made (A) to the Parent, the Borrower or any of the Parent’s or Borrower’s Affiliates or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B) or (C) to a natural person.

(vi) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or sub-participations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, and each other Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Applicable Percentage of the relevant Facility. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided that, except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder

 

76


arising from such Lender having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.

(c) Limitations on Rights of Eligible Assignees. If (i) a Lender assigns or transfers any of its rights or obligations under this Agreement or under any other Loan Document or changes its applicable Lending Office and (ii) as a result of circumstances existing at the date of the assignment, transfer or change, the Borrower would be obliged to make a payment to the relevant assignee, transferee or Lender acting through its new Lending Office pursuant to Section 3.01 or Section 3.04, then the relevant assignee, transferee or Lender acting through its new Lending Office is only entitled to receive payment under those Sections as a result of those circumstances to the same extent as the assignor, transferor or Lender acting through its previous Lending Office would have been if the assignment, transfer or change had not occurred. For the avoidance of doubt, this subsection (c) shall not limit the Borrower’s obligations to make payments pursuant to Section 3.01 or 3.04 in respect of Taxes or a Tax Deduction arising as a result of a Change in Law after the date of the relevant assignment, transfer or change in applicable Lending Office.

(d) Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts and stated interest of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Parent, the Borrower, the Agents and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available for inspection by the Parent, the Borrower and any Lender (but only, in the case of a Lender, at the Administrative Agent’s Office and with respect to any entry relating to such Lender’s Commitments, Loans and other Obligations), at any reasonable time and from time to time upon reasonable prior notice.

(e) Participations. Any Lender may at any time, without the consent of, or notice to, the Parent, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, or the Parent, the Borrower or any of the Parent’s or Borrower’s Affiliates or Subsidiaries, or a Person that the Administrative Agent has identified in a notice to the Lenders as a Defaulting Lender) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans; provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Parent, the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided, that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury regulations. The

 

77


entries in each Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification, consent or waiver in respect of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, consent, waiver or other modification requiring the consent of each Lender or the consent of each Lender affected thereby that affects such Participant. Subject to subsection (f) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.

(f) Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant shall not be entitled to the benefits of Section 3.01 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) and, if applicable, Section 3.01(i) as though it were a Lender. For the avoidance of doubt, any Lender selling a participation shall, in accordance with Section 3.01(e)(ii), promptly notify the Borrower and the Administrative Agent if that participation modifies or renders invalid (or is reasonably likely to modify or render invalid) any claimed exemption from or reduction of Tax (including any treaty clearance to which that Lender may be entitled in respect of the payments made to it by any Loan Party under any Loan Document).

(g) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note(s), if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(h) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “SPC”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof or, if it fails to do so, to make such payment to the Administrative Agent as is required under Section 2.12(c). Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including its obligations under Section 3.04), (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (iii) the Granting Lender shall for all purposes,

 

78


including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior debt of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained herein, any SPC may (i) with notice to, but without prior consent of the Borrower and the Administrative Agent and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion), assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPC. A SPC shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Granting Lender would have been entitled to receive with respect to the participation sold to such SPC, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A SPC shall not be entitled to the benefits of Section 3.01 unless the Borrower is notified of the participation sold to such SPC and such SPC agrees, for the benefit of the Borrower, to comply with Section 3.01(e) and, if applicable, Section 3.01(i) as though it were a Granting Lender. For the avoidance of doubt, any Granting Lender selling a participation shall, in accordance with Section 3.01(e)(ii), promptly notify the Borrower and the Administrative Agent if that participation modifies or renders invalid (or is reasonably likely to modify or render invalid) any claimed exemption from or reduction of Tax (including any treaty clearance to which that Granting Lender may be entitled in respect of the payments made to it by any Loan Party under any Loan Document).

10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory or tax authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g) on a confidential basis to (i) any rating agency in connection with rating the Parent or its Subsidiaries or the Facilities, (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Facilities or (iii) any credit insurance provider, (h) with the consent of the Borrower or the Parent or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates on a non-confidential basis from a source other than the Borrower or the Parent.

For purposes of this Section, “Information” means all information received from the Parent, the Borrower or any Subsidiary relating to the Parent, the Borrower or any Subsidiary or any of their

 

79


respective businesses, other than any such information that is available to the Administrative Agent, any Lender on a non-confidential basis prior to disclosure by the Parent, the Borrower or any Subsidiary; provided that, in the case of information received from the Parent, the Borrower or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may include material non-public information concerning the Parent, the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.

10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party against any and all of the obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.16 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.

10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

 

80


10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.

10.11 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Borrowing, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied.

10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent then such provisions shall be deemed to be in effect only to the extent not so limited.

10.13 Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender is a Defaulting Lender, or if any circumstance exists under the last paragraph of Section 10.01 that gives the Borrower the right to replace a Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment); provided that:

(a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 10.06(b);

(b) such Lender shall have received payment of an amount equal to 100% of the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);

 

81


(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;

(d) the Borrower or such Eligible Assignee shall have received all consents required in accordance with Section 10.06;

(e) if applicable, the replacement Eligible Assignee or Eligible Assignees shall consent to such amendment or waiver, and such amendment or waiver shall, after giving effect to such consent(s), be consummated; and

(f) such assignment does not conflict with applicable Laws.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

Notwithstanding anything in this Section to the contrary, the Lender that acts as the Administrative Agent may not be replaced hereunder except in accordance with the terms of Section 9.06.

Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section 10.13.

10.14 Governing Law; Jurisdiction; Etc.

(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

(b) SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.

 

82


(c) WAIVER OF VENUE. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each of the Borrower and the Parent acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Agents and the Lenders are arm’s-length commercial transactions between the Parent, the Borrower and their respective Affiliates, on the one hand, and the Agents and the Lenders, on the other hand, (B) each of the Borrower and the Parent has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each of the Borrower and the Parent is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the Agents and the Lenders is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower, the Parent or any of their respective Affiliates, or any other Person and (B) none of the Agents nor the Lenders has any obligation to the Borrower, the Parent or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Agents and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the Parent and their respective Affiliates, and none of the Agents nor the Lenders has any obligation to disclose any of such interests to the Borrower, the Parent or any of their respective Affiliates. To the fullest extent permitted by Law, each of the Borrower and the Parent hereby waives and releases any claims that it may have against each Agent and each Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

 

83


10.17 Electronic Execution of Assignments and Certain Other Documents. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

10.18 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower, the Parent and each Guarantor that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the Borrower, the Parent and each Guarantor, which information includes the name and address of the Borrower, the Parent and each Guarantor, and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower, the Parent or any Guarantor, as applicable, in accordance with the USA PATRIOT Act. Each of the Borrower and the Parent and each Guarantor shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act.

10.19 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Borrower in respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent or any Lender from the Borrower in the Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent or any Lender in such currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess to the Borrower (or to any other Person who may be entitled thereto under applicable Law).

[Signature pages follow]

 

84


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

TRINITY ACQUISITION LIMITED, as Borrower
By:  

/s/ Stephen Wood

Name:   Stephen Wood
Title:   Director

 

Signature Page To Term Loan Agreement


SIGNED AND DELIVERED for and on behalf of and as the deed of WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY, as Parent, by its lawfully appointed attorney in the presence of:    

/s/ John T. Greene

    Name:   John T. Greene
    Title:   Chief Financial Officer

/s/ Alistair C. Peel

     
(Witness’ Signature)      

51 Lime Street

     

London E23M 7DQ

     
(Witness’ Address)      

Company Secretary

     
(Witness’ Occupation)      

 

Signature Page To Term Loan Agreement


BARCLAYS BANK PLC, as Administrative Agent and Lender
By:  

/s/ Samuel Coward

Name:   Samuel Coward
Title:   Vice President
Executed in London, United Kingdom

 

Signature Page To Term Loan Agreement


BANK OF MONTREAL, as a Lender
By:  

/s/ Debra Basler

Name:   Debra Basler
Title:   Managing Director

 

Signature Page To Term Loan Agreement


BANK OF MONTREAL, LONDON BRANCH, as a Lender
By:   /s/ Tony Ebdon   /s/ Lisa Rodriguez
 

 

Name:   Tony Ebdon   Lisa Rodriguez
Title:   Managing Director   MD

 

Signature Page To Term Loan Agreement


BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender
By:  

/s/ Glenn Schuermann

Name:   Glenn Schuermann
Title:   Director

 

Signature Page To Term Loan Agreement


CITIBANK NA, LONDON BRANCH, as Lender
By:  

/s/ Gavin Westmoreland

Name:   Gavin Westmoreland
Title:   Vice President

 

Signature Page To Term Loan Agreement


COMERICA BANK, as a Lender
By:  

/s/ Aurora Battaglia

Name:   Aurora Battaglia
Title:   Senior Vice President

 

Signature Page To Term Loan Agreement


HSBC BANK PLC, as Lender
By:  

/s/ Elizabeth Saltor

Name:   Elizabeth Saltor
Title:   Director

 

Signature Page To Term Loan Agreement


JPMORGAN CHASE BANK, N.A., as Lender
By:  

/s/ James S. Mintzer

Name:   James S. Mintzer
Title:   Vice President

 

Signature Page To Term Loan Agreement


LLOYDS BANK PLC, as a Lender
By:  

/s/ Erin Doherty

Name:   Erin Doherty
Title:   Assistant Vice President D006
By:  

/s/ Daven Popat

Name:   Daven Popat
Title:   Senior Vice President P003

 

Signature Page To Term Loan Agreement


MANUFACTURERS AND TRADERS TRUST COMPANY, as a Lender
By:  

/s/ Ramal Moreland

Name:   Ramal Moreland
Title:   Vice President

 

Signature Page To Term Loan Agreement


THE NORTHERN TRUST COMPANY, as a Lender
By:  

/s/ Joshua Metcalf

Name:   Joshua Metcalf
Title:   2VP

 

Signature Page To Term Loan Agreement


PNC BANK, N.A., as Lender
By:  

/s/ Nicole Limberg

Name:   Nicole Limberg
Title:   Vice President

 

Signature Page To Term Loan Agreement


THE ROYAL BANK OF SCOTLAND PLC, as a Lender
By:  

/s/ Andrew Roberts

Name:   Andrew Roberts
Title:   Director

 

Signature Page To Term Loan Agreement


SCOTIABANK (IRELAND) LIMITED, as a Lender
By:   /s/ Clive Sinnamon   /s/ Sue Foster
Name:   Clive Sinnamon   Sue Foster
Title:   Director   CEO

 

Signature Page To Term Loan Agreement


SUNTRUST BANK, as Lender
By:  

/s/ Paula Mueller

Name:   Paula Mueller
Title:   Director

 

Signature Page To Term Loan Agreement


WELLS FARGO BANK, N.A., as Lender
By:  

/s/ Michelle S. Dagenhart

Name:   Michelle S. Dagenhart
Title:   Director

 

Signature Page To Term Loan Agreement


SCHEDULE 1.01(B)

GUARANTORS

 

Name of Entity

  

Jurisdiction of Organization

Willis Group Holdings Public Limited Company    Ireland
Willis Netherlands Holdings B.V.    Netherlands
Willis Investment UK Holdings Limited    England & Wales
TA I Limited    England & Wales
Willis North America Inc.    Delaware, USA
Willis Group Limited    England & Wales
WTW Bermuda Holdings Ltd.    Bermuda
Willis Towers Watson Sub Holdings Limited    Ireland


SCHEDULE 2.01

COMMITMENTS AND APPLICABLE PERCENTAGES

 

Name of Lender

   Tranche A
Commitment
     Tranche A
Applicable
Percentage
    Tranche B
Commitment
     Tranche B
Applicable
Percentage
 

Barclays Bank PLC

   60,500,000         11.000000000   $ 44,000,000         11.000000000

SunTrust Bank

   60,500,000         11.000000000   $ 44,000,000         11.000000000

JPMorgan Chase Bank, N.A.

   44,000,000         8.000000000   $ 32,000,000         8.000000000

Lloyds Bank plc

   44,000,000         8.000000000   $ 32,000,000         8.000000000

Wells Fargo Bank, National Association

   44,000,000         8.000000000   $ 32,000,000         8.000000000

HSBC Bank PLC

   44,000,000         8.000000000   $ 32,000,000         8.000000000

PNC Bank, N.A.

   33,000,000         6.000000000   $ 24,000,000         6.000000000

Bank Of Tokyo-Mitsubishi UFJ, Ltd.

   33,000,000         6.000000000   $ 24,000,000         6.000000000

Citibank, N.A.

   33,000,000         6.000000000   $ 24,000,000         6.000000000

Manufacturers and Traders Trust Company

   33,000,000         6.000000000   $ 24,000,000         6.000000000

Bank of Montreal

   33,000,000         6.000000000   $ 24,000,000         6.000000000

The Royal Bank of Scotland plc

   25,000,000         4.550000000   $ 18,000,000         4.500000000

Scotiabank (Ireland) Limited

   25,000,000         4.550000000   $ 18,000,000         4.500000000

Northern Trust Company

   25,000,000         4.550000000   $ 18,000,000         4.500000000

Comerica Bank

   13,000,000         2.350000000   $ 10,000,000         2.500000000
  

 

 

    

 

 

   

 

 

    

 

 

 

Total:

   550,000,000         100.000000000   $ 400,000,000         100.000000000
  

 

 

    

 

 

   

 

 

    

 

 

 


SCHEDULE 3.01

STATUS OF LENDERS

 

     Tax Status

Lender Name

   Not a UK Qualifying
Lender
   UK Qualifying Lender
(other than a UK Treaty
Lender)
   UK Treaty Lender

Barclays Bank PLC

      X   

SunTrust Bank

         X

JPMorgan Chase Bank, N.A.

         X

Lloyds Bank plc

      X   

Wells Fargo Bank, National Association

         X

HSBC Bank PLC

      X   

PNC Bank, National Association

         X

The Bank of Tokyo-Mitsubishi UFJ, Ltd.

         X

Citibank, N.A.

         X

Manufacturers and Traders Trust Company

         X

Bank of Montreal

         X

The Royal Bank of Scotland plc

      X   

Scotiabank (Ireland) Limited

         X

Northern Trust Company

         X

Comerica Bank

         X


SCHEDULE 3.01(i)

HMRC DT TREATY PASSPORT SCHEME LENDERS

 

Lender

  

Scheme Reference Number

  

Jurisdiction of Tax Residence

Comerica Bank    13/C/65903/DTTP    United States
Wells Fargo Bank, N.A.    013/W/61173/DTTP    United States
PNC Bank, National Association    13/P/63904/DTTP    United States
The Bank of Tokyo-Mitsubishi UFJ, Ltd.    43/B/322072/DTTP    Japan
JPMorgan Chase Bank, N.A.    013/M/0268710/DTTP    United States
SunTrust Bank    13/S/67712/DTTP    United States
Citibank, N.A.    13/C/62301/DTTP    United States
Scotiabank (Ireland) Limited    12/S/71066/DTTP    Ireland
The Northern Trust Company    13/N/60122/DTTP    United States
Manufacturers and Traders Trust Company    13/M/67072/DTTP    United States


SCHEDULE 3.01(j)

UK NON-BANK LENDERS

None


SCHEDULE 5.06

DISCLOSED MATTERS

None.


SCHEDULE 5.12

SUBSIDIARIES

 

Company

  

Status

   Direct or Indirect
Combined
Ownership by
Parent
   

Direct Owner

  

Country of

Registration

Willis Netherlands Holdings B.V.    Guarantor      100   Willis Group Holdings Public Limited Company    Netherlands
Willis Investment UK Holdings Limited    Guarantor      100   Willis Netherlands Holdings B.V.    England & Wales
TA I Limited    Guarantor      100   Willis Investment UK Holdings Limited    England & Wales
Trinity Acquisition Limited    Borrower      100   TA I Limited    England & Wales
Willis Group Limited    Guarantor      100   Trinity Acquisition Limited    England & Wales
Willis North America Inc.    Guarantor      100   Willis Group Limited    USA
WTW Bermuda Holdings Ltd.    Guarantor      100   TA I Limited    Bermuda
Willis Towers Watson Sub Holdings Limited    Guarantor      100   Willis Group Holdings Public Limited Company    Ireland

All Subsidiaries of Willis Group Holdings Public Limited Company are listed on the attached appendices.


SUBSIDIARIES OF WILLIS NORTH AMERICA INC.    APPENDIX 1
(Subsidiaries are indented)   

 

%
Owned

   

Company Name

  

HFM
Entity Code

  

Link

Code

  

Auditor

   Trading/
Dormant
   Activity
If Trading
  

Country of
Registration

 

WILLIS NORTH AMERICA INC.

   US001       D&T    T    Holding Company    U.S.A.
  100.0  

Willis Services LLC

   US002       D&T    T    Limited Liability    U.S.A.
  100.0  

WILLIS US HOLDING COMPANY, INC.

   US003       D&T    T    Holding Company    U.S.A.
  100.0  

Willis HRH Inc.

   US004       D&T    T    Holding Company    U.S.A.
  100.0  

Freberg Environmental, Inc.

   US005       D&T    T    Insurance Broker    U.S.A.
  100.0  

PBW LLC

   US008          D    Insurance Broker    U.S.A.
  100.0  

Premium Funding Associates, Inc.

   US009          T    Premium Funding    U.S.A.
  100.0  

Smith, Bell & Thompson, Inc.

   US010          T    Insurance Broker    U.S.A.
  100.0  

Westport HRH, LLC

   US011          T    Insurance Broker    U.S.A.
  100.0  

Westport Financial Services, LLC

   US012          T    Insurance Broker    U.S.A.
  100.0  

Willis of Connecticut, LLC

   US013       D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Greater Kansas, Inc.

   US015       D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Oklahoma, Inc.

   US016       D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Virginia, Inc.

   US017       D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Wyoming, Inc.

   US018       D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis Programs of Connecticut Inc.

   US019       D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Michigan, Inc.

   US020       D&T    T    Insurance Broker    U.S.A.
  100.0  

Queenswood Properties Inc

   US022    N/A    D&T    T    Investment    U.S.A.
  100.0  

Willis Administrative Services Corporation

   US023    7760    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Colorado, Inc.

   US024    9500    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis Americas Administration, Inc.

   US025    6077    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis Insurance Services of California, Inc.

   US026    6006    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis Insurance Services of Georgia, Inc.

   US027    6030    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis Management (Vermont) Limited

   US028    6079    D&T    T    Insurance Broker    U.S.A
  100.0  

Willis North American Holding Company

   US029       D&T    T    Holding Company    U.S.A.
  100.0  

Willis of Alabama, Inc.

   US030    6042    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Arizona, Inc.

   US031    6000    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Illinois, Inc.

   US032    6035    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Louisiana, Inc.

   US033    6043    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Maryland, Inc.

   US034    6056    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Massachusetts, Inc.

   US035    6052    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Minnesota, Inc.

   US037    6040    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Mississippi, Inc.

   US038    N/A    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of New Hampshire, Inc.

   US039    6053    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of New Jersey, Inc.

   US040    6059    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis Giaconia Life, LLC

   US041       D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of New York, Inc.

   US042    6058    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis Personal Lines, LLC

   US043       D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of North Carolina, Inc.

   US045    6033    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Ohio, Inc.

   US046    6066    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Oregon, Inc.

   US047    6017    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Pennsylvania, Inc.

   US048    6057    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Seattle, Inc.

   US050    6015    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Tennessee, Inc.

   US051    6034    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Florida, Inc.

   US052       D&T    T    Insurance Broker    U.S.A.
  100.0  

Hunt Insurance Group, LLC

   US053          T    Insurance Broker    U.S.A.
  100.0  

Willis of Texas, Inc.

   US054    6005    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis of Wisconsin, Inc.

   US055    6039    D&T    T    Insurance Broker    U.S.A.
  100.0  

Willis Processing Services, Inc.

   US056       D&T    T    Processing    U.S.A.
  100.0  

Willis Re Inc.

   US057    3900    D&T    T    Reinsurance Broker    U.S.A.
  100.0  

Willis Securities, Inc.

   US058    7677       T    Broker Dealer    U.S.A.
  100.0  

WTW Delaware Holdings, LLC

            T    Holding Company    USA


OTHER SUBSIDIARIES OF WILLIS GROUP LIMITED    APPENDIX 3
(Subsidiaries are indented)   

 

%
Owned

   

Company Name

     

HFM
Entity Code

 

Link

Code

  Auditor   Trading/
Dormant
 

Activity

If Trading

 

Country of
Registration

  WILLIS GROUP LIMITED     GB014   1550   D&T   T   Holding company  
  49  

Al-Futtaim Willis Co. L.L.C.

  (Held on trust for Willis International)   AE800   3038   E&Y   T   Insurance Brokers and Consultants   Dubai
  99.9  

AF Willis Bahrain W.L.L.

    AE800   3038   E&Y   T   Insurance Broker   Bahrain
  99.9  

AF Willis Bahrain E.C.

    AE800   3038   E&Y   T   Insurance Broker   Bahrain
  40.0  

Willis Saudi Arabia Company LLC

    AE800       T   Insurance and Reinsurance Broker   Saudi Arabia
  90.0  

Willis Insurance Brokers Co. Ltd.

  (10% - Shanghai Xin Hui Investment Consultancy Co. Ltd)   CN001   5877   D&T   T   Insurance Broker   China, PRC
  100  

Willis Holding GmbH

  (NB Held on trust for WEBV)   DE001   9407   E&Y   T   Insurance Company Management / Holding   Germany
  100.0  

Willis Re Beteiligungsgesellschaft mbH

    DE010     D&T   T   complementary of Willis Re KG   Germany
  100.0  

Willis GmbH & Co., K.G.

    DE002   5874   D&T   T   Insurance Brokers and Consultants   Germany
  100  

InterRisk Risiko-Management-Beratung GmbH

    DE003     D&T   T   Risk Management Consultant   Germany
  100  

Willis Assekuranz GmbH

    DE004     D&T   T   complementary of Willis GmbH & Co. KG   Germany
  100  

JWA Marine GmbH

    DE005     D&T   T   Insure Brokers and Consultants   Germany
  100  

Willis Finanzkonzepte GmbH

    DE006     D&T   T   Insure Brokers and Consultants   Germany
  100  

Willis Schadensmanagement GmbH

    DE008       T   Insure Brokers and Consultants   Germany
  50.1  

WMN GmbH

 

49.9% owned by ANGLO

Underwriting GmbH

  DE012         Insure Brokers and Consultants   Germany
  50.1  

WV Versicherungsmakler GmbH

  49.9% owned by WV Energie AG   DE800           Germany
  100  

Willis Re GmbH & Co., K.G.

    DE009   5919   D&T   T   Insurance Broker   Germany
  66.8  

Acappella Group Holdings Limited

  33.2% owned by Ironshore Limited   GB046     D&T   D     England & Wales


  100.0  

Acappella Agency Limited

    GB128       D     England & Wales
  100.0  

Acappella Capital Limited

    GB093       D     England & Wales
  100.0  

Acappella Syndicate Management Limited

    GB094       T     England & Wales
  100.0  

Acappella Transactional Real Estate Limited

    GB129       D     England & Wales
  100  

Willis Finance Limited

    GB111          
  100  

Willis Financial Limited

    GB112          
  100  

Willis Faber Limited

  (see Appendix 7)   GB025   1905   D&T   T   Holding Company   England & Wales
  100.0  

Faber & Dumas Limited

    GB016       D     England & Wales
  100  

Willis Pension Trustees Limited

    GB017   9175     D     England & Wales
  100.0  

Willis UK Investments

  (unlimited company)   GB018     D&T   T   Investment Company   England & Wales
  100.0  

Lees Preston Fairy (Holdings) Limited

    GB104       T   Holding Company   England & Wales
  100.0  

HRH (London) Limited

    GB105       T   Holding Company   England & Wales
  100.0  

NIB (Holdings) Limited

    GB106       T   Holding Company   England & Wales
  100.0  

NIB (UK) Limited

    GB107       T   Insurance Broker   England & Wales
  55.0  

Barnfield Swift & Keating LLP

  (45% owned by Willis Faber Limited)   GB049       T   Insurance Broker   England & Wales
  100.0  

Oakley Holdings Limited

    GB108       T   Holding Company   England & Wales
  100.0  

HRH Reinsurance Brokers Limited

    GB109       Non-Trading   Reinsurance Broker   England & Wales
  100.0  

K Evans & Associates Limited

    GB110       Non-Trading   Insurance Introducer   England & Wales
  100.0  

Miller 2015 Limited

  (15% owned by Dawson Capital Limited and individual members)   GB120           England & Wales
  85.0  

Miller Insurance Services LLP

    GB121           England & Wales
 

Miller Insurance Holdings Limited

    GB122           England & Wales
  33.1  

Miller do Brasil Corretora de Resseguros Ltda

              Brazil
  100.0  

Miller Insurance Services (Singapore) Pte. Limited

    SG004           Signapore
  100.0  

Miller Insurance Services (Labuan) Limited

    MY006           Labuan
  100.0  

MICAL

    GB126       Active     Gurnsey
  100.0  

Miller Holdings Limited

    GB123           England & Wales
  100.0  

Miller Marine Limtied

              England & Wales
  100.0  

Miller North America Limited

    GB125       Non-Trading     England & Wales
  100.0  

Miller Reinsurance Brokers Limited

    GB124       Non-Trading     England & Wales
  50.0  

Six Clerks Insurance Services Limited

    GB127       Trading     England & Wales
  100.0  

Morton Insurance Company Limited

    BM010           England & Wales
  100.0  

International Tankers Indemnity Association Limited

    BM011           England & Wales
  100.0  

Miller Insurance Investments Limited

          Non-Trading     England & Wales
 

Miller Bermuda Limited

    BM009          
  100.0  

Miller Financial Services Limited (In liquidation)

          In Liquidation     England & Wales
  100  

Special Contingency Risks Limited

    GB072   3700   D&T   T   Insurance Broker   England & Wales
  100.0  

Special Contingency Risks, Inc

    US014     D&T   T   Insurance Broker   U.S.A.


SUBSIDIARIES OF WILLIS LIMITED    APPENDIX 4

(Subsidiaries are indented)

 

%
Owned

   

Company Name

     

HFM
Entity Code

 

Link
Code

  Auditor   Trading/
Dormant
 

Activity

If Trading

 

Country of
Registration

 

WILLIS LIMITED

    GB068   3100   D&T   T   Risk Management and insurance brokers  
  100.0  

Glencairn UK Holdings Limited

    GB007       T   Holding Company   England & Wales
  100.0  

Faber Global Limited

  (formerly Glencairn Limited)   GB008       T   Insurance/Reinsurance Broker   England & Wales
  100  

W.I.R.E. Limited

    GB073   9250   D&T   D     England & Wales
  100  

W.I.R.E. Risk Information Limited

    GB074   9250     D     England & Wales
  25.0  

Erimus Holdings Teesside Limited (shareholding to be reduced shortly)

    GB800           England & Wales
  100.0  

PPH Limited

    GB115         Holding company   Bermuda
  100.0  

Prime Professions Limited

    GB117         Insurance Broker   England & Wales
  100.0  

The CORRE Partnership Holdings Limited

    GB118         Holding company   England & Wales
  85.0  

CORRE Partnership LLP

    GB116         Risk Consultancy   England & Wales

 

SUBSIDIARIES OF WILLIS UK LIMITED    APPENDIX 5

(Subsidiaries are indented)

 

%
Owned

   

Company Name

 

HFM
Entity Code

 

Link
Code

 

Auditor

  Trading/
Dormant
  Activity
If Trading
 

Country of
Registration

 

WILLIS UK LIMITED

  GB076   5000   D&T   T   Holding Company   England & Wales
  100  

Goodhale Limited

  GB077   5611     Non-trading   Wholesale insurance broking   England & Wales
  100  

VEAGIS Limited

  GB078   5603     D     England & Wales
  100  

Willis Corroon (FR) Limited

  GB081   5604   D&T   T   Fiscal Representative   England & Wales


SUBSIDIARIES OF WILLIS INTERNATIONAL LIMITED    APPENDIX 6
(Subsidiaries are indented)   

 

%
Owned

   

Company Name

     

HFM
Entity Code

 

Link

Code

  Auditor   Trading/
Dormant
 

Activity

If Trading

 

Country of
Registration

 

WILLIS INTERNATIONAL LIMITED

    GB086   9412   D&T   T   Holding Company   England & Wales
  90.0  

Venture Reinsurance Company Limited

  (10% is owned by VR Holdings, a Barbados company whose ultimate parent is Laurentian Bank of Canada)   BB002   5813   D&T   T   Reinsurance Company   Barbados
  100  

Meridian Insurance Company Limited

    BM006   6082   D&T   T   Insurance Company   Bermuda
  100  

Willis (Bermuda) 2 Limited

    BM007   8250   D&T   Non-trading   Insurance Broker   Bermuda
  100.0  

Resilience Re Limited

            Reinsurance Company   Bermuda
  66.6  

Willis Europe B.V.

  (33.42% held by Willis Overseas Investments Limited)   NL002   9115   D&T   T   Holding Company   Netherlands
  100  

Willis Overseas Brokers Limited

    GB088   5666   D&T   D     England & Wales
  100  

Willis Overseas Investments Limited

    GB089   9413   D&T   T   Investment Company   England & Wales
  33.4  

Willis Europe BV

    NL002   9115   D&T   T   Holding Company   Netherlands
  100  

Willis Overseas Limited

    GB090   8281   D&T   D     England & Wales
  100  

Willis Management (Gibraltar) Limited

    GI001   5802   D&T   T   Captive Management   Gibraltar
  100  

Friars Street Insurance Limited

    GB119   9015   D&T   T   Captive Ins Co   Guernsey
  100.0  

Trinity Square Insurance Limited

    GI002   9098   D&T   T   Captive Ins Co   Gibraltar
  100  

Willis Corroon Management (Luxembourg) S.A.

    LU001   5914     D     Luxembourg
  60.0  

WFD Servicios S.A. de C.V.

  (Willis Europe BV 40%)   MX003   3684   D&T   T   Service Company   Mexico
  100  

Willis CIS Insurance Broker LLC

    RU003   5963   D&T   T   Insurance Broker   Russia
  100  

Asmarin Verwaltungs AG

    CH002   5960   D&T   T   Holding Company   Switzerland
  100  

Willis AG

    CH003   5960   D&T   T   Insurance Broker   Switzerland
  100  

Willis Corretaje de Reaseguros S.A.

    VE002   5988   D&T   T   Reinsurance Consultant   Venezuela
  100  

Willis Insurance Brokers LLC

    UA001       T   Insurance Broker   Ukraine
  100.0  

Willis (Shanghai) Business Consulting Co., LTD.

            Insurance Broker   China


SUBSIDIARIES OF WILLIS EUROPE BV    APPENDIX 6A
(Subsidiaries are indented)   

 

%
Owned

   

Company Name

     

HFM

Entity Code

 

Link
Code

  Auditor   Trading/
Dormant
 

Activity

If Trading

 

Country of
Registration

  WILLIS EUROPE BV     NL002   9115        
  96.0  

Willis Corredores de Reaseguros SA

  (4% owned by Willis International Limited)   AR005   3725   D&T   T   Reinsurance Broker   Argentina
  95.0  

Willis Argentina S.A.

  (5% owned by Willis International Limited)   AR002   5941   D&T   T   Insurance Broker   Argentina
  95.0  

Asifina S.A.

  (5% owned by Willis International Limited)   AR003   5941   D&T   D     Argentina
  95.0  

WDF Consultores S.A

  (5% owned by Willis International Limited)   N/A     Deloitte &
E&Y
  T   Consultantcy   Argentina
  100  

Willis Australia Holdings Limited

    AU001   5930   D&T   T   Holding Company   Australia
  100.0  

Trinity Processing Services (Australia) Pty Limited

    AU002   N/A     T   Processing   Australia
  100  

Willis Australia Limited

    AU003   5930   D&T   T   Insurance Broker   Australia
  100  

Richard Oliver International Limited

    GB087       D     England & Wales
  100.0  

CKA Risk Solutions Pty Limited

              Australia
  100.0  

Willis Employee Benefits Pty Limited

    AU005     D&T   T   Employee Benefits   Australia
  100  

Willis Reinsurance Australia Limited

    AU006     D&T   T   Reinsurance Broker   Australia
  100  

Willis Australia Group Services Pty Limited

    AU007     D&T   T   Risk Management   Australia
  100  

Richard Oliver Underwriting Managers Pty Limited

    AU008     D&T   T   Underwriting Mngmnt   Australia
  100  

Willis GmbH

    AT001     D&T   T   Insurance Broker   Austria
  100  

WFB Corretora de Seguros Ltda

    BR001   9417   D&T   T   Holding Company   Brazil
  70.0  

Sertec Servicos Tecnicos de Inspecao, Levantamentos e Avaliacoes Ltda

  (30% held by Wilis Corretores de Seguros Ltda)   BR002   N/A   D&T   T   Service Company   Brazil
  99.0  

Willis Corretores de Seguros Limitada

  100% Willis Group owned   BR003   5999   D&T   T   Insurance Broker   Brazil
  99.0  

Willis Affinity Corretores de Seguros Limitada

  100% Willis Group owned   BR004   N/A   D&T   T   Insurance Broker   Brazil
  100  

York Vale Corretora e Administradora de Seguros Limitada

    BR005       D   Process of being dissolved   Brazil
  90.0  

Willis Administradora de Beneficios Ltda

  10% Willis Affinity Corretores de Seguros Ltda   BR008       D   Awaiting Regulator Approval   Brazil
  100  

Willis Corretora de Resseguros Limitada

    BR009   N/A   D&T   T   Reinsurance Broker   Brazil
  38  

Willis Insurance Brokers (B) Sdn Bhd

    BN800   3028     T   Insurance Broker   Brunei
  100  

Willis Holding Company of Canada Inc

    CA001   9414   D&T   T   Holding Company   Canada
  100  

Willis Canada Inc.

    CA003   N/A   D&T   T   Insurance Broker   Canada
  100  

Willis Re Canada Inc.

    CA007     D&T   T   Reinsurance Broker   Canada


SUBSIDIARIES OF WILLIS EUROPE BV    APPENDIX 6A
(Subsidiaries are indented)    (continued)

 

%
Owned

   

Company Name

     

HFM
Entity Code

 

Link

Code

  Auditor   Trading/
Dormant
 

Activity If Trading

 

Country of
Registration

 

WILLIS EUROPE BV

    NL002          
  95.0  

WDF Consultores S.A.

 

(5% held by Willis

International Ltd)

  N/A   5990   D&T   T   Consultancy   Argentina
  99  

Willis Chile Limitada

 

(1% held by Willis

International Ltd)

  N/A   5990   D&T   D     Chile
  99  

Willis Corredores de Reaseguro Limitada

  (1% held by Willis Insurance Services S.A.)   CL003   5691   D&T   T   Reinsurance Broker   Chile
  96.0  

Willis Insurance Services S.A.

  (4% held by Willis International Limited)   CL002   7749   D&T   T   Insurance Broker   Chile
  94.9  

Willis Colombia Corredores de Seguros S.A.

  100% owned by Willis Group   CO001   5916   D&T   T   Insurance Broker   Colombia
  100.0  

Willis Consulting S.A.S

          T   Consultancy Services   Colombia
  94.9  

Willis Corredores de Reaseguros S.A.

  100% owned by Willis Group   CO003     D&T   T   Reinsurance Broker   Colombia
  40.0  

J.R.C. Metropolitan Trust Holdings Limited

  (60% owned by Gras Savoye SA)   CY800     Local
auditor
  T   Holding Company   Cyprus
  100.0  

Gras Savoye Willis Net Trust Insurance Brokers SA

    N/A     Local
auditor
  T   Insurance Services   Greece
  100.0  

Willis sro

    CZ001   3045     T   Insurance Broker   Czech Republic
  100.0  

Willis A/S

    DK001   5907   D&T   D     Denmark
  85.0  

Willis I/S

    DK002   5925   D&T   T   Insurance Broker   Denmark
  85.0  

Willis Forsikringsservice I/S

    DK003   5925   D&T   T   Insurance Administration   Denmark
  85.0  

Willis Finansradgivning I/S

    DK004     D&T   T   Flex Benefit   Denmark
  85.0  

Willis Føroyar I/S

    N/A       T   Insurance Broker   Faroe Islands
  85.0  

Willis Tryggingartaenasta Foroyar I/S

    N/A       T   Insurance Administration Company   Faroe Islands
  85.0  

Willis Insurance Agency I/S

    N/A          
  100.0  

Willis Re Nordic Reinsurance Broking (Denmark) A/S

    DK005     D&T   T   Reinsurance Broker   Denmark
  30.4  

GS & Cie Groupe

    FR800       T   Holding Company   France
  7.9  

Dream Management 1

    N/A       T   Managers Company   France
  10.6  

Dream Management 2

    N/A       T   Managers Company   France
  100.0  

Willis France Holdings SAS

    FR003       T   Holding Company   France
  100.0  

Willis Re S.A.

    FR001     D&T   T   Reinsurance Broker   France
  40.0  

Gras Savoye Willis S.A.

  (owned 59% Gras Savoye SA & 1% Herve Leboucher)   GR800   5901   DRM
Stylianou
  T   Insurance Broker   Greece
  40.0  

Willis Kendriki SA

  (60% owned by Gras Savoye SA)   GR801   5902   DRM
Stylianou
  T   Insurance Broker   Greece
  100  

Willis Hong Kong Limited

    HK001   3021   D&T   T   Insurance Broker   Hong Kong
  100.0  

Willis Capital Markets & Advisory (Hong Kong) Limited

    HK002       TBC   M & A and Capital Markets Advisory   Hong Kong
  100.0  

Charles Monat Limited

    HK005     D&T       Hong Kong
  100.0  

Charles Monat Associates Limited

    HK003     D&T       Hong Kong
  100.0  

Charles Monat Agency Limited

    HK004     D&T       Hong Kong
  100.0  

Charles Monat Associates Pte. Ltd.

    SG003     PwC       Singapore
  100.0  

Willis Kft

    HU001   3044   D&T   T   Insurance Broker   Hungary
  99.99  

Willis Processing Services (India) Pvt. Ltd

  Willis Corroon Nominiees Limited 0.001%   IN001   3050   D&T   T   Service Centre   India
  80.0  

PT Willis Indonesia

  (20% held by PT Ciptalima Persada)   ID001     D&T   T   Insurance Broker   Indonesia
  80.0  

PT Willis Reinsurance Indonesia

              Indonesia


SUBSIDIARIES OF WILLIS EUROPE BV    APPENDIX 6A
(Subsidiaries are indented)    (continued)

 

%
Owned

   

Company Name

     

HFM
Entity Code

 

Link

Code

  Auditor   Trading/
Dormant
 

Activity

If Trading

 

Country of
Registration

 

WILLIS EUROPE BV

    NL002          
  100.0  

Willis Re Southern Europe S.p.A

    IT001   5910   D&T   T   Reinsurance Broker   Italy
  100.0  

Willis Italia S.p.A

    IT002   5910   D&T   T   Insurance Broker   Italy
  100.0  

Willis General Agency Srl

    N/A       T   Underwriting Agency   Italy
  100.0  

Willconsulting Srl

    N/A       T   Service company   Italy
  100  

Willis Korea Limited

    KP001   5939   D&T   T   Insurance Broker   Korea
  49.0  

Willis (Malaysia) Sdn Bhd

    MY002   3022   PW   T   Insurance Broker   Malaysia
  40.0  

WFD Servicios S.A. de C.V.

  (Willis International 60%)   MX003       T   Service company   Mexico
  100.0  

Willis Mexico Intermediario de Reaseguro S.A. de C.V.

    MX004   3035   D&T   T   Reinsurance Broker   Mexico
  100.0  

Willis Agente de Seguros y Fianzas, S.A. de C.V.

    MX001   3035   D&T   T   Insurance Broker   Mexico
  100.0  

Rontarca-Prima Consultores C.A.

    N/A     D&T   T   Consulting   Venezuela
  99.96  

Carsa Consultores, Agente de Seguros y de Fianzas, S.A. de C.V.

  Willis Overseas Investments 0.04%   MX005           Mexico
  33.84  

Carsa SP, Agente de Seguros y de Fianzas, S.A. de C.V.

  Carsa Consultores Agente de Seguros y Fianzas, S.A. de C.V. 66.16%   MX005           Mexico
  99.96  

Mercorp, Agente de Seguros y de Fianzas, S.A. de C.V.

  Willis Overseas Investments 0.04%   MX005           Mexico
  33.84  

APR Consultores, Agente de Seguros y de Fianzas, S.A. de C.V.

  Consultores en Administración de Riesgos y Servicios Actuariales, S.C. 66.16%   MX005           Mexico
  99.99  

Consultores en Administración de Riesgos y Servicios Actuariales, S.C.

  Willis Overseas Investments 0.01%   MX005           Mexico
  50.00  

Carsa Actuarios, S.C.

  Carsa Consultores Agente de Seguros y Fianzas, S.A. de C.V. 50%   MX005           Mexico
  100  

Willis Nederland B.V.

    NL003   9404   D&T   T   Holding Company   Netherlands
  100  

Willis Consulting Services Private Limited

  (1share held by AV Singh)   IN002       T   Consultancy Service   India
  100  

Willis B.V.

    NL004   5922   D&T   T   Holding Company   Netherlands
  100.0  

Willis Global Markets B.V.

    NL005       T   Insurance Broker   Netherlands
  100.0  

Rontarca Willis, C.A.

    VE001     D&T   T   Insurance Broker   Venezuela
  100.0  

Plan Administrado Rontarca Salud, C.A.

    N/A     D&T   T   TPA Administrator   Venezuela
  100.0  

Asesorauto 911, C.A.

    N/A     D&T   D     Venezuela
  100.0  

C.A. Prima Corretaje de Seguros

  (C.A.Prima Asesoria Tecnica)   N/A       D     Venezuela
  100  

Scheuer Verzekeringen B.V.

    NL006     D&T   T   Insurance Broker/Holding Company   Netherlands
  100.0  

Willis New Zealand Limited

    NZ001   5964   D&T   T   Insurance Broker   New Zealand
  100.0  

Willis AS

    NO001   5969   D&T   T   Insurance Broker   Norway
  100.0  

Willis Forsikringspartner AS

    NO002     D&T   D     Norway
  100.0  

Willis Re Nordic Reinsurance Broking (Norway) AS

    NO003     D&T   T   Reinsurance Broker   Norway
  100.0  

Willis Corredores de Seguros SA

    PE003     D&T   T   Insurance Broker   Peru
  100  

Willis Corredores de Reaseguros SA

    PE004     D&T   T   Reinsurance Broker   Peru
  100.0  

Willis Polska S.A.

    PL001   3042   D&T   T   Insurance Broker   Poland
  100.0  

Willis Services sp. z o.o.

    N/A       T   Insurance Agency   Poland
  100.0  

Brokerskie Centrum Ubezpieczeniowe AMA SP. Z O.O.

    PL002       T   Insurance Broker   Poland
  100  

Willis (Singapore) Pte Limited

    SG001   3023   D&T   T   Insurance Broker   Singapore
  100  

Willis Management (Labuan) Limited

    MY005     Local
auditor
  T   Offshore Insurance Underwriting Management   Malaysia
  100  

Willis Management (Singapore) Pte Ltd

    SG002   N/A   D&T   T   Risk Management   Singapore
  100  

Willis Management (HK) Pty Limited

    HK006   N/A     D     Hong Kong


SUBSIDIARIES OF WILLIS EUROPE BV    APPENDIX 6A
(Subsidiaries are indented)    (continued)

 

%
Owned

   

Company Name

     

HFM
Entity Code

 

Link

Code

  Auditor   Trading/
Dormant
 

Activity

If Trading

 

Country of
Registration

 

WILLIS EUROPE BV

    NL002          
  74.0  

Willis South Africa (Pty) Limited

  (Clorpique 149 )   ZA900   9804   D&T   T   Insurance Broker   South Africa
  22.5  

Amabubesi Consulting Services

    ZA900     lucro   T   Employee Benefits   South Africa
  51.0  

Group Risk Management Services Proprietary Limited

    ZA900       T   Insurance Broker   South Africa
  100.0  

Willis Re (Pty) Limited

    ZA900     D&T   T   Reinsurance Broker   South Africa
  100.0  

Motheo Reinsurance Consultants (Pty) Limited

    ZA900     D&T   D     South Africa
  100.0  

Bolgey Holding S.A.

    ES001     D&T   T   Holding Company   Spain
  77.0  

Willis Iberia Correduria de Seguros y Reaseguros SA

  13% owned by Gras Savoye & Cie and 10% held by Gras Savoye Eurofinance)   ES002   5905   D&T   T   Insurance Broker   Spain
  100.0  

Willis Consulting S.L.

    ES003     D&T   T   Consultancy   Spain
  100.0  

Willis Affinity SL

          T   Affinity Services   Spain
  99.9  

Willis Corretores de Seguros SA

    PT001   5903   D&T   T   Insurance Broker   Portugal
  79.0  

Claim Management Administrator, S.L.

 

(15% - MA.

Mervedano, 3% - J Mattern, 3% - J de Eusebio)

  ES004     D&T   T   Claim Consultant   Spain
  100.0  

Willis S & C c Correduria de Seguros y Reaseguros SA (Barcelona)

    ES005     D&T   T   Insurance Broker   Spain
  50.0  

Willis Galicia Correduria de Seguros S.A.

  (50% owned by Corporacion Caixa Galicia)   N/A     PWC   T   Insurance Broker   Spain
  100.0  

Willis Holding AB

    SE001     D&T   T   Holding Company   Sweden
  100.0  

Willis AB

    SE002   5906   D&T   T   Insurance Broker   Sweden
  100.0  

Willis Management (Stockholm) AB

    SE003     D&T   D     Sweden
  76.0  

MM Holding AB

    SE004       T   Holding Company   Sweden
  50.0  

Be My Compensation Management AB

    SE004          
  50.0  

InsClear Holding AB

    SE004          
  100.0  

InsClear AB

    SE004          
  100.0  

Max Matthiessen AB

    SE004       T     Sweden
  100.0  

PF Pensions- och försäkringskonsult AB

    SE004       T     Sweden
  100.0  

Max Matthiessen Värdepapper AB

    SE004       T   Investment Firm   Sweden
  100.0  

Navigera AB

    SE004       T   Fund and AIF-manager   Sweden
  100  

Willis OY AB

    FI001   5908   D&T   T   Insurance Broker   Finland
  100  

Willis Faber AG

    CH001   3014     T   Reinsurance Broker   Switzerland
  100  

Willis (Taiwan) Limited

    TW001   3025   D&T   T   Insurance Broker   Taiwan
  100.0  

Elite Risk Services Limited

          T   Insurance Broker   Taiwan
  25  

Multi Risk Consultants (Thailand) Limited

    TH800   3024   D&T   T   Insurance Broker   Thailand
  100  

Willis Risk Management (Malaysia) Sdn. Bhd.

    MY003     D&T   T   Insurance Broker   Malaysia


OTHER SUBSIDIARIES OF WILLIS FABER LIMITED  
(Subsidiaries are indented)   APPENDIX 7

 

%
Owned

   

Company Name

       

HFM
Entity Code

  

Link

Code

  

Auditor

  

Trading/
Dormant

  

Activity

If Trading

  

Country of
Registration

 

WILLIS FABER LIMITED

      GB025    1900    D&T    T    Holding Company   
  100  

Friars Street Trustees Limited

      GB035    9130       D       England & Wales
  100  

Johnson Puddifoot & Last Limited

      GB038    3740       D       England & Wales
  100  

Matthews Wrightson & Co Limited

      GB040    9140       D       England & Wales
  100  

McGuire Insurances Limited

      GB041    5680       D       Northern Ireland
  100.0  

Opus Holdings Limited

      GB043          T    Holding Company    England & Wales
  100.0  

Opus London Market Limited

      GB044          D       England & Wales
  100.0  

Opus Insurance Services Limited

      GB045          D       England & Wales
  100  

Run-Off 1997 Limited

      GB047       D&T    T    Consultancy and Project management    England & Wales
  100  

RCCM Limited

      GB048    5644       D       England & Wales
  45.0  

Barnfield Swift & Keating LLP

   (55% owned by NIB UK Limited)    GB049          T    Insurance Broker    England & Wales

%
Owned

   

Company Name

       

HFM
Entity Code

  

Link

Code

  

Auditor

  

Trading/
Dormant

  

Activity

If Trading

  

Country of
Registration

  WILLIS FABER LIMITED       GB025             Holding Company   
  100  

Stewart Wrightson International Group Limited

      GB050    9150       D       England & Wales
  100  

Stewart Wrightson (Regional Offices) Limited

      GB053    9030    D&T    D       England & Wales
  100  

Trinity Processing Services Limited

      GB055    9245    D&T    T    Provision of services for insurance claims and accounting    England & Wales
  100  

Willis Asia Pacific Limited

      GB057    3001/917    D&T    T    Management services    England & Wales
  100  

Willis Consulting Limited

      GB058       D&T    Non Trading    Risk Mgt Consultants    England & Wales
  100  

Willis Capital Markets & Advisory Limited

      GB059    5815    D&T    T    Advisors on merger and acquisition    England & Wales
  100  

Willis Japan Limited

      GB060    3860    D&T    T    Holding Company    England & Wales
  100  

Willis Japan Holdings K.K.

      JP001    5070       T    Holding Company    Japan
  100  

Willis Japan Services K.K.

      JP002    5070       T    Insurance Agency    Japan
  100  

Willis Re Japan K.K.

      N/A    5070       T    Reinsurance Broker    Japan
  100  

Willis Consulting K.K.

      JP004    5070       D       Japan
  100  

Willis Corroon Licensing Limited

      GB061    9266    D&T    T    Management Services    England & Wales
  100  

Willis Employee Benefits Limited

   (name change 27/02/2006)    GB062       D&T    T    Employee benefits    England & Wales
  100  

Willis Faber & Dumas Limited

      GB063    9020    D&T    D       England & Wales
  100  

Willis Group Services Limited

   (see Appendix 8)    GB092       D&T    T    Service Company    England & Wales
  100  

Willis Corroon Financial Planning Limited

      GB064    5500    D&T    T    Financial Planning    England & Wales
  100  

Willis Faber UK Group Limited

   (see Appendix 10)    GB101       D&T    T    Holding Company    England & Wales
  100.0  

Willis Faber Underwriting Agencies Limited

   (see Appendix 9)    GB097          D       England & Wales
  100  

Willis International Limited

   (see Appendix 6)    GB086       D&T    T    Holding Company    England & Wales
  100  

Willis Limited

   (see Appendix 4)    GB068    3100    D&T    T    Insurance Broker    England & Wales
  100  

Willis UK Limited

   (see Appendix 5)    GB076          T    Holding Company    England & Wales
  100  

Willis Corporate Director Services Limited

      GB066          D       England & Wales
  100  

Willis ESOP Management Limited

      GB067    N/A       T    Trustee Manager    Jersey
  100.0  

Willis Structured Financial Solutions Limited

      GB113          T    Financial risk mitigation solutions    England & Wales


SUBSIDIARIES OF WILLIS GROUP SERVICES LIMITED   
(Subsidiaries are indented)    APPENDIX 8

 

%
Owned

   

Company Name

  

HFM
Entity Code

  

Link
Code

  

Auditor

  

Trading/
Dormant

  

Activity

If Trading

  

Country of
Registration

  100  

Willis Corroon Nominees Limited

   GB095    9155       D       England & Wales
  100.0  

Willis Group Medical Trust Limited

   GB096          D       England & Wales

 

SUBSIDIARIES OF WILLIS FABER UNDERWRITING AGENCIES LIMITED    APPENDIX 9
(Subsidiaries are indented)   

 

%
Owned

   

Company Name

  

HFM
Entity Code

  

Link
Code

  

Auditor

  

Trading/
Dormant

  

Activity

If Trading

  

Country of
Registration

 

WILLIS FABER UNDERWRITING AGENCIES LIMITED

   GB097    8530       D      
  100  

Devonport Underwriting Agency Limited

   GB098    8520       D       England & Wales
  100  

Willis Faber (Underwriting Management) Limited

   GB099    8500    D&T    Non-trading    Underwriting Mngmnt    England & Wales
  100  

Willis Faber Underwriting Services Limited

   GB100    8535       D       England & Wales

 

SUBSIDIARIES OF WILLIS FABER UK GROUP LIMITED  
(Subsidiaries are indented)   APPENDIX 10

 

%
Owned

 

Company Name

  

HFM
Entity Code

  

Link

Code

  

Auditor

  

Trading/
Dormant

  

Activity

If Trading

  

Country of
Registration

 

WILLIS FABER UK GROUP LIMITED

   GB101    9075    D&T    T    Holding Company   


SUBSIDIARIES OF WILLIS INVESTMENT HOLDING (BERMUDA) LIMITED   
(Subsidiaries are indented)    APPENDIX 11

 

%
Owned

   

Company Name

     

HFM
Entity Code

 

Link
Code

  Auditor   Trading/
Dormant
 

Activity
If Trading

 

Country of
Registration

 

WILLIS INVESTMENT HOLDING (BERMUDA) LIMITED

    BM001     D&T   T   Holding Company   Bermuda
  100.0  

Lime Street Insurance PCC Limited

  (1 share owned by Willis Corroon Nominees Limited)   MT001       T   Captive Management   Malta
  100.0  

Willis (Bermuda) Limited

    BM002   8045   D&T   T   Insurance Broker   Bermuda
  100.0  

Willis Management (Barbados) Limited

    BB001       T   Captive Management   Barbados
  100  

Willis Management (Bermuda) Limited

    BM003   9430   D&T   T   Captive Management   Bermuda
  100.0  

Willis Re Bermuda Limited

    BM004   3970   D&T   T   Reinsurance Broker   Bermuda
  100  

Willis Management (Cayman) Limited

    KY001   9410   D&T   T   Captive Management   Cayman Islands
  100.0  

Willis Management (Dublin) Limited

    IE007   7700   D&T   T   Captive Management   Eire
  100  

Willis Management (Guernsey) Limited

    GB001   7695   D&T   T   Captive Management   Guernsey
  100  

Willis Management (Isle of Man) Limited

    GB002   7690   D&T   T   Captive Management   Isle of Man
  100  

Willis Administration (Isle of Man) Limited

    GB114     D&T   T     Isle of Man
  100.0  

Willis Re Labuan Limited

    MY001   9241   D&T   T   Treaty Reinsurance   Malaysia
  100.0  

Willis Management (Malta) Limited

    MT002   2980   D&T   T   Captive Management   Malta
  100.0  

Willis Services (Malta) Limited

    MT003       T   Management Company   Malta

 

SUBSIDIARIES OF HILB ROGAL & HOBBS UK HOLDINGS LIMITED    APPENDIX 12
(Subsidiaries are indented)   

 

%
Owned

   

Company Name

 

HFM
Entity Code

 

Link

Code

  Auditor   Trading/
Dormant
 

Activity
If Trading

 

Country of
Registration

 

HILB ROGAL & HOBBS UK HOLDINGS LIMITED

  GB005          
  100.0  

Glencairn Group Limited

  GB006       T   Holding Company   England & Wales

 

SUBSIDIARIES OF WILLIS RISK SERVICES HOLDINGS (IRELAND) LIMITED   
(Subsidiaries are indented)    APPENDIX 13

 

%
Owned

   

Company Name

 

HFM
Entity Code

 

Link
Code

  Auditor   Trading/
Dormant
 

Activity
If Trading

 

Country of
Registration

 

WILLIS RISK SERVICES HOLDINGS (IRELAND) LIMITED

           
  100.0  

Willis Risk Services (Ireland) Ltd

  IE900     D&T   T   Holding Company   Ireland
  100.0  

Attain Consulting Limited

  N/A     D&T   T   Insurance Broking + Employee Benefits consulting   Ireland
  99.9  

Hamilton & Hamilton 1972 Limited

  IE900     D&T   T   Holds premises lease   Ireland
  100.0  

Trustee Principles Limited

  N/A     D&T   T   Pension Trustee services   Ireland
  100.0  

Willis Risk Management (Ireland) Limited

  IE900     D&T   T   Risk Advisory Services   Ireland
  100.0  

Willis Trustsure limited

  IE900     D&T   T   Pension Trustee services   Ireland


SCHEDULE 7.02

EXISTING LIENS

 

1. Liens on the land and buildings owned by Willis Limited and located at (i) Friars Street, Ipswich IPI, 1TA, United Kingdom and (ii) Franciscan Way, Ipswich, Suffolk, IP1 1TR, United Kingdom in connection with that certain USD 20,000,000 Revolving Facility Agreement, dated as of December 12, 2012, as amended, restated, amended and restated, or otherwise modified from time to time, by and among Willis Limited and Lloyds TSB Bank Plc.


SCHEDULE 7.06

SPECIFIED PROPERTIES

None.


SCHEDULE 10.02

ADMINISTRATIVE AGENT’S ADDRESS, CERTAIN ADDRESSES FOR NOTICES

 

I. Borrower:

Trinity Acquisition Limited

c/o Willis North America Inc.

26 Century Boulevard

Nashville, TN 37214

Attention: J. Ammon Smartt

Telephone No.: 615-872-3016

Email Address: [email protected]

with a copy to:

Weil Gotshal & Manges LLP

200 Crescent Court, Suite 300

Dallas, TX 75201

Attention: Courtney Marcus

Telephone No.: 214-746-8100

Fax No.: 214-746-7777

Email Address: [email protected]

 

II. Administrative Agent:

Barclays Bank PLC

Credit Contact:

Barclays Bank PLC

745 Seventh Avenue

New York, NY 10019

Attention: Mathew Cybul

Facsimile: 212-526-5115

Telephone: 212-526-5851

Email: [email protected]

with a copy to:

Post Close Operations/Administrative Contact:

Barclays Bank PLC

1301 Sixth Avenue

New York, NY 10019

Attention: Andre Nelson

Facsimile: 917-522-0569

Telephone: 212-320-6209

Email: [email protected]


Wire Instructions:

 

Bank Name:    Barclays Bank PLC
Address:    70 Hudson Street, Jersey City, NJ 07302
ABA#:    026 002 574
Account Name:    Clad Control Account
Account Number:    050-019104
Ref:    Willis Group

 

III. Lenders

As provided in the applicable Lender’s Administrative Questionnaire


EXHIBIT A

[FORM OF BORROWING REQUEST]

BORROWING REQUEST

Date:             ,         

 

To: Barclays Bank PLC,

as Administrative Agent

745 Seventh Avenue

New York, NY 10019

Attention: Mathew Cybul

Facsimile: 212-526-5115

Telephone: 212-526-5851

Email: [email protected]

 

cc: Barclays Bank PLC

1301 Sixth Avenue

New York, NY 10019

Attention: Andre Nelson

Facsimile: 917-522-0569

Telephone: 212-320-6209

Email: [email protected]

Ladies and Gentlemen:

Reference is made to that certain Term Loan Agreement dated as of November [    ], 2015 (as the same may be amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time in accordance with its terms, the “Agreement”; the terms defined therein being used herein as therein defined), among Trinity Acquisition Limited, a company formed under the laws of England and Wales having company number 03588435 (the “Borrower”), Willis Group Holdings Public Limited Company, a company incorporated under the laws of Ireland having company number 475616 (the “Parent”), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”), Barclays Bank PLC, as Administrative Agent, and the other parties thereto.

The Borrower hereby requests a:

 

  1. Select one:

¨  Borrowing

¨  Conversion of Loans

¨  Continuation of Eurocurrency Rate Loans

 

  [2. Select One:

¨  If such Borrowing consists of Eurocurrency Rate Loans, such Borrowing shall continue to consist of Eurocurrency Rate Loans having an Interest Period of [    ] months.

 

A-1


¨  If such Borrowing consists of Eurocurrency Rate Loans, such Borrowing shall be converted to Base Rate Loans.

¨  If such Borrowing consists of Base Rate Loans, such Borrowing shall be converted to Eurocurrency Rate Loans having an Interest Period of [    ] months.]1

 

  [2. In the aggregate amount of [$] [€]        .

 

  3. Comprised of [Base Rate] [Eurodollar Rate] Loans.

 

  [4. With an Interest Period of      months.]2

 

  [3][6]. On             , 201     (a Business Day).

 

  [4][7]. The account to which funds are to be disbursed is:

[Wiring Information]

 

  [5][8]. The Debt Rating of the Parent on the date hereof is                     .

This Borrowing Request and the Borrowing requested herein comply with Sections 2.01, 2.02, [4.02]3 [4.03]4 and 4.04 of the Agreement.

 

TRINITY ACQUISITION LIMITED
By:  

 

Name:  
Title:  

 

1  To be included if “Conversion of Loans” or “Continuation of Eurocurrency Rate Loans” is selected.
2  Insert if a Borrowing of Eurocurrency Rate Loans.
3  To be included if borrowing Tranche A Term Loans.
4  To be included if borrowing Tranche B Term Loans.

 

A-2


EXHIBIT B

[FORM OF NOTE]

NOTE

FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to                      or registered assigns (the “Lender”), in accordance with the provisions of the Agreement (as hereinafter defined), the aggregate unpaid principal amount of each Loan made by the Lender to the Borrower under that certain Term Loan Agreement dated as of November [    ], 2015 (as the same may be amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time in accordance with its terms, the “Agreement”; the terms defined therein being used herein as therein defined), between the Borrower, Willis Group Holdings Public Limited Company, a company incorporated under the laws of Ireland having company number 475616, each lender from time to time party thereto, Barclays Bank PLC, as Administrative Agent, and the other parties thereto. The Borrower promises to pay interest on the unpaid principal amount of each Loan made by the Lender to the Borrower under the Agreement from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.

This Note is one of the Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.

The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

 

TRINITY ACQUISITION LIMITED
By:  

 

Name:  
Title:  

 

B-1


LOANS AND PAYMENTS WITH RESPECT THERETO

 

Date

  Type of
Loan Made
  Currency
and
Amount of
Loan Made
  End of
Interest
Period
  Amount of
Principal or
Interest Paid
This Date
  Outstanding
Principal
Balance This
Date
  Notation
Made By
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           

 

B-2


EXHIBIT C

[FORM OF COMPLIANCE CERTIFICATE]

COMPLIANCE CERTIFICATE

Financial Statement Date:            , 201    

 

To: Barclays Bank PLC, as Administrative Agent

Ladies and Gentlemen:

Reference is made to that certain Term Loan Agreement, dated as of November [    ], 2015 (as may be amended, restated, amended and restated, extended, supplemented or otherwise modified in writing from time to time in accordance with its terms, the “Agreement”; the terms defined therein being used herein as therein defined), among Trinity Acquisition Limited, a company formed under the laws of England and Wales having company number 03588435 (the “Borrower”), Willis Group Holdings Public Limited Company, a company incorporated under the laws of Ireland having company number 475616 (the “Parent”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and Barclays Bank PLC, as Administrative Agent.

The undersigned, a Financial Officer of the Parent, hereby certifies as of the date hereof that he/she is the                      of the Parent, and that, as such, he/she is authorized to execute and deliver this Compliance Certificate to the Administrative Agent on the behalf of the Parent, and that:

[Use following paragraph 1 for fiscal year-end financial statements]

1. The Parent has delivered the year-end audited financial statements required by Section 6.01(a) of the Agreement for the fiscal year of the Parent ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section.

[Use following paragraph 1 for fiscal quarter-end financial statements]

1. The Parent has delivered the unaudited financial statements required by Section 6.01(b) of the Agreement for the fiscal quarter of the Parent ended as of the above date. Such financial statements fairly present in all material respects the financial condition and results of operations of the Parent and its consolidated Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.

2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Parent and its Subsidiaries during the accounting period covered by such financial statements.

3. A review of the activities of the Parent and its Subsidiaries during such fiscal period has been made under the supervision of the undersigned with a view to determining whether a Default or Event of Default has occurred during such fiscal period, and to the best knowledge of the undersigned, during such fiscal period [no Default or Event of Default has occurred]/[the following Default(s) or Event(s) of Default has/have occurred [or continued] and the following indicates its/their nature and status:]

4. The financial covenant analyses and information set forth on Schedules 1 and 2 attached hereto are true and accurate on and as of the date of this Compliance Certificate.

 

C-1


IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of             ,         .

 

WILLIS GROUP HOLDINGS PUBLIC LIMITED COMPANY
By:  

 

Name:  

 

Title:  

 

 

C-2


Schedule 1 to the Compliance Certificate

For the Quarter/Year ended                      (“Statement Date”) ($ in 000’s)

 

I.   Section 7.08(a) – Consolidated Cash Interest Coverage Ratio.
  A.   Consolidated EBITDA for four consecutive fiscal quarters ending on above date (“Subject Period”):   $            
  B.   Consolidated Cash Interest Expense for Subject Period:   $            
  C.   Consolidated Cash Interest Coverage Ratio (Line I.A ÷ Line I.B):        to 1
  Minimum required: 4.00 to 1.00
II.   Section 7.08(b) – Consolidated Leverage Ratio.
  A.   Consolidated Funded Indebtedness at Statement Date:   $            
  B.   Consolidated EBITDA for Subject Period:   $            
  C.   Consolidated Leverage Ratio (Line II.A ÷ Line II.B):        to 1
  Maximum permitted: [3.25][3.50]5 to 1.00

 

5  To be used during a Covenant Reset Period.

 

C-3


Schedule 2 to the Compliance Certificate

For the Quarter/Year ended                      (“Statement Date”) ($ in 000’s)

EBITDA6

(in accordance with the definition of Consolidated EBITDA as set forth in the Agreement)

 

EBITDA

   Quarter
Ended
   Quarter
Ended
   Quarter
Ended
   Quarter
Ended
   Four Quarter
Period
Ended

Consolidated Net Income

              

+ consolidated interest expense

              

+ consolidated income tax expense

              

+ depreciation and amortization

              

+ extraordinary losses and nonrecurring charges

              

+ non-cash charges (including the non-cash portion of pension expense)

              

+ losses on asset sales outside the ordinary course of business

              

+ restructuring charges or provisions

              

+ acquisition related costs7

              

+ expenses or charges incurred in connection with any issuance of debt or equity securities

              

+ deduction for minority interest expense for such

              

 

6  Solely for the purpose of determining the Consolidated Leverage Ratio, includes amounts of Acquired EBITDA for any Acquired Entity or Business for such period and excludes Acquired EBITDA for any Sold Entity or Business for such period, in accordance with the Agreement.
7  Any costs incurred in connection with acquisitions (including in connection with closure and/or consolidation of facilities) shall not exceed an aggregate amount with respect to any such acquisition equal to 5% of the aggregate consideration for such acquisition.

 

C-4


period with respect to a Subsidiary that is not wholly owned by the Parent8

              

- extraordinary gains and non-recurring gains

              

- non-cash gains

              

- gains on asset sales outside the ordinary course of business

              

= Consolidated EBITDA

              

 

8  Such addition subject to the conditions that (A) the amount added to Consolidated Net Income pursuant to this provision for any period shall not exceed 5% of the amount of Consolidated EBITDA computed in accordance with this definition for such period, and (B) the Indebtedness and interest expense of such Subsidiary are included in the calculation of Indebtedness and Consolidated Cash Interest Expense to the same extent as would be required if such Subsidiary were wholly owned by the Parent.

 

C-5


EXHIBIT D-1

[FORM OF ASSIGNMENT AND ASSUMPTION]

ASSIGNMENT AND ASSUMPTION

This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Term Loan Agreement identified below (the “Term Loan Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Term Loan Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations as a Lender under the Term Loan Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Term Loan Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as, the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.

 

1.   Assignor:   
2.   Assignee:                         [and is an Affiliate/Approved Fund of [identify Lender]]
3.   Borrower:  &