29/th/ August 2002
The Directors
Hewitt Bacon & Woodrow Limited
Renaissance House
32 Upper High Street
Epsom
Surrey
KT17 4QJ
Dear Sirs,
We refer to the letter ("the Letter") dated 5th June 2002 from Barclays Bank Plc
("the Bank") setting out the terms and conditions of an aggregate term facility
("the Facility") to Hewitt Bacon & Woodrow Limited ("the Borrower").
We are pleased to vary the terms and conditions of the Letter as follows:-
1) The amount of (pound)11,000,000 (Eleven Million Pounds Sterling) referred to
in the first paragraph is amended to (pound)17,000,000 (Seventeen Million Pounds
Sterling)
2) In clause 1.1 the amount is amended to (pound)17,000,000 (Seventeen Million
Pounds Sterling)
3) In clause 2.2 the "Expiry Date" is amended to 30th November 2002
All other terms and conditions will remain unchanged.
Acceptance of the amended terms and conditions shall be signified by the
Borrower returning to the Bank within one month, the enclosed duplicate of this
letter duly signed on the Borrower's behalf as evidence of acceptance of the
amended terms and conditions;
An additional fee of (pound)2,500 (Two Thousand Five Hundred Pounds Sterling)
will be taken on acceptance of this letter.
Your faithfully
For and on behalf of
BARCLAYS BANK PLC
/s/David Berragan
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David Berragan
Relationship Director
Accepted on the terms and conditions stated herein,
For and on behalf of
Hewitt Bacon & Woodrow Limited
/s/ John C. Oliver September 4, 2002
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John C. Oliver Date
/s/ Andrew H. Yeomans September 4, 2002
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Andrew H. Yeomans Date
The Directors
Hewitt Bacon & Woodrow Limited
Renaissance House
32 Upper High Street
Epsom, Surrey
KT17 4QJ
05 June 2002
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Dear Sirs
Barclays Bank PLC (the "Bank") is pleased to offer to provide in aggregate term
facilities of up to (pound)11,000,000 (Eleven million pounds sterling) to Hewitt
Brown & Woodrow Limited (the "Borrower") subject to the terms and conditions set
out below. Capitalised words used below shall have the meanings given to them in
clause 12 and elsewhere in this Facility Letter.
The Schedules attached hereto form part of the terms and conditions of this
Facility Letter.
Subject to satisfaction of the conditions set out in clause 13 below, the
Facility will be available for utilisation by the Borrower, subject to the
following terms and conditions:
1. Options Available Within and Utilisation of the Facility
1.1 The Facility may be utilised by way of the following options and in
accordance with the provisions of the Schedules related thereto:
Sterling Money Market Loan (the "Sterling MML") (see Schedule A) and/or
Sterling Overdraft (see Schedule B) and/or
Barclays Managed Rate Facility (the "BMRF") (see Schedule C).
Within the Facility the aggregate of the liabilities due, owing or incurred
thereunder shall not at any time exceed (pound)11,000,000 (Eleven million
pounds sterling).
1.2 The Borrower shall not consider the Bank to be under any obligation to lend
funds under the Facility. Any drawing agreed thereunder shall be at the
sole discretion of the Bank.
2. Availability
2.1 All money owing under the Facility is repayable upon written demand by the
Bank and/or any undrawn portion of the Facility may be cancelled by the
Bank at any time. Following demand and/or cancellation, no further
utilisation may be made under the Facility.
2.2 In the absence of demand or cancellation by the Bank, the Facility is
available for utilisation until 30 August 2002 (the "Expiry Date").
However, the Bank will be pleased to discuss the Borrower's future
requirements shortly before the Expiry Date.
3. Security and Guarantee
3.1 All indebtedness owing by the Borrower to the Bank will be guaranteed by
Hewitt Associates Inc (the "Guarantor") in the form required by the Bank
and the Borrower will procure that such guarantee will be supported by all
security which is now or subsequently held by the Bank to secure all
indebtedness for the time being owing by the Guarantor to the Bank (if
any).
4. Cancellation
Any undrawn part of the Facility may be cancelled by the Borrower in
minimum amounts of (pound)500,000 and multiples of (pound)500,000 subject
to the Borrower:
(a) giving the Bank not less than seven Business Days' notice in writing
(such notice, once given, shall be irrevocable)
The non-utilisation fee will then cease to accrue on such cancelled
amounts. Amounts which are cancelled will no longer be available for
utilisation.
5. Change of Circumstances
5.1 In the event of:
(a) any change in applicable law, regulation or practice resulting in the
Bank being subjected to any new or additional tax, levy, duty, charge,
penalty, deduction or withholding of any nature (other than tax on the
Bank's overall net profits and gains), or
(b) any existing requirements of any central bank, governmental, fiscal,
monetary, regulatory or other authority in any applicable jurisdiction
affecting the conduct of the Bank's business being changed or any new
requirements being imposed (whether or not having the force of law)
including, without limitation, any resulting from the introduction or
operation of the euro and a request or requirement which affects the
manner in which the Bank allocates capital resources to its
commitments, including its obligations under this Facility Letter,
and the result is in the sole opinion of the Bank (directly or indirectly)
to increase the cost to the Bank of funding, making available or
maintaining the Facility or to reduce the amount of any payment received or
receivable by the Bank or to reduce the effective return to the Bank, then
the Borrower shall pay to the Bank on demand such sum as may be certified
in writing by the Bank to the Borrower as necessary to compensate the Bank
for such increased cost or such reduction.
5.2 The Borrower may, at any time within six weeks after the date of
certification from the Bank under clause 5.1, prepay all amounts
outstanding under the Facility without penalty, by giving not less than
five Business Days' irrevocable notice to the Bank to that effect
specifying the prepayment date. The Borrower shall be obliged to prepay to
the Bank all amounts outstanding under the Facility on such date, together
with all interest accrued to the date of actual payment and all other sums
due to the Bank hereunder. Unless prepayment is made within such period of
six weeks, an amount equal to such increased cost or such reduction will be
payable by the Borrower under the preceding sub-clause from the date of
such certification.
5.3 Reference to the cost of funds/sterling deposits and to the London
Interbank Market shall, if such cost ceases to be market
practice/ordinarily used by the Bank for the purpose of calculating
interest on facilities of this kind or such market no longer exists in
comparable form, be construed as meaning the appropriate alternative cost
or source of funds as the case may be, as determined by the Bank.
6. Fee
6.1 An arrangement fee of (pound)15,000 will be payable by the Borrower to the
Bank on acceptance of this offer.
6.2 The fee referred to in clause 6.1 is exclusive of any VAT which might be
chargeable in connection with that fee. If any VAT is so chargeable, it
shall be paid by the Borrower to the Bank at the same time as it pays the
relevant fee.
7. Legal, Valuation and other Expenses
Any legal and valuation fees and expenses (including documentation fees)
(including any applicable VAT) and other out of pocket expenses (including
any applicable VAT) incurred by the Bank in connection with the
preparation, execution and implementation of this Facility Letter (and the
documents referred to herein) and the enforcement and preservation by the
Bank of its rights under this Facility Letter or such documents will be
reimbursed by the Borrower on demand by the Bank on a full indemnity basis
(whether or not the Facility is drawn down) and may be debited to the
Borrower's account with the Bank without further authority from the
Borrower.
8. Information
The Borrower undertakes to provide to the Bank:
(a) copies of the audited accounts (including trading and profit and loss
account and balance sheet) of the Borrower and the audited
consolidated accounts of the Borrower and its Subsidiaries as soon as
they are available and not later than 180 days from the end of each
accounting reference period together with unaudited interim financial
statements of the Borrower and the unaudited consolidated interim
financial statements of the Borrower and its Subsidiaries as soon as
they are available after the end of each half year;
(b) copies of any circular issued to shareholders or holders of loan
capital;
(c) copies of the Borrower's monthly profit and loss accounts and the
quarterly balance sheet within 30 days of their preparation;
(d) copies of the Guarantor's six monthly profit and loss accounts and
balance sheet as soon as these are published; and
(e) any other information which the Bank may reasonably request from time
to time.
9. Payments
9.1 All payments by the Borrower, whether of principal, interest or otherwise,
shall be made to the Bank (or such other bank as the Bank may specify from
time to time) for value on the due date by such times and in such funds as
the Bank may specify as being customary at the time for settlement of
transactions in the relevant currency in the place for payment, without
set-off or counterclaim and free of any deduction or withholding for or on
account of tax unless the Borrower is compelled by law to make such a
payment subject to the deduction or withholding of tax.
9.2 If the Borrower is compelled by law to make any such deduction or
withholding, or the Bank is compelled by law to make any payment in respect
of tax (other than tax on overall net income), in each case from or in
respect of any amount payable or paid by the Borrower hereunder, the
Borrower will pay to the Bank such additional amount as is required to
ensure that the Bank receives and retains (free from any liability in
respect of any such deduction or withholding) a net amount equal to the
full amount which it would have received if no such deduction, withholding
or payment had been made.
9.3 All taxes required by law to be deducted or withheld by the Borrower from
any amounts payable or paid hereunder shall be paid by the Borrower to the
appropriate authority within the time allowed for such payment under
applicable law and the Borrower shall, within 30 days of the payment being
made, deliver to the Bank evidence reasonably satisfactory to the Bank
(including all relevant tax receipts) that the payment has been duly
remitted to the appropriate authority.
9.4 The Bank shall be entitled to adjust the dates for the making of payments
under the Facility, and the duration of interest periods, where in the
Bank's opinion it is necessary to do so in order to comply with the
practice from time to time prevailing in the London Interbank Market or any
other financial market relevant for the purposes of the Facility.
10. Interest on an Overdue Amount
10.1 Any money payable under this Facility Letter which is not paid when due by
the Borrower shall bear interest on a daily basis from the due date to the
date of actual payment. Such interest shall be calculated by reference to
successive default interest periods of such duration as the Bank may from
time to time select, except that the first such period relating to any
overdue amount in respect of the Sterling MML shall be such as to mature at
the end of the interest period current at the time when such amount became
due.
10.2 Interest shall be charged at the rate per annum determined by the Bank to
be equal to 1% above the rate which would otherwise have been applicable to
such overdue amount under the provisions of the relevant Schedule if such
amount had been non-overdue principal. Interest so accrued shall be due on
demand or (in the absence of demand) on the last day of the default
interest period in which it accrued and, if unpaid, shall be compounded on
the last day of that and each successive interest period. Interest shall be
charged and compounded on this basis both before and after any judgement
obtained under this Facility Letter.
11. Miscellaneous
11.1 All notifications or determinations given or made by the Bank under this
Facility Letter shall be conclusive and binding on the Borrower, except in
any case of manifest error.
11.2 The Borrower may not assign or transfer any of its rights or obligations
under or in respect of this Facility Letter.
11.3 The Borrower shall indemnify the Bank on demand (without prejudice to the
Bank's other rights) for any expense, loss or liability incurred by the
Bank in consequence of (i) any failure by the Borrower to borrow in
accordance with a notice of drawing given by it to the Bank, or (ii) any
default or delay by the Borrower in the payment of any amount when due
under this Facility Letter, or (iii) all or part of the Facility being
prepaid or repaid for any reason otherwise than on the maturity of the then
current interest period including, without limitation, any loss (including
loss of margin), expense or liability sustained or incurred by the Bank in
any such event in liquidating or re-deploying funds acquired or committed
to fund, make available or maintain the Facility (or any part of it).
11.4 Any sum of money at any time standing to the credit of the Borrower with
the Bank in any currency upon any account or otherwise may be applied by
the Bank, at any time (without notice to the Borrower), in or towards the
payment or discharge of any indebtedness now or subsequently owing to the
Bank by the
Borrower and the Bank may use any such money to purchase any currency or
currencies required to effect such application.
11.5 If, for any reason, any amount payable under this Facility Letter is paid
or is recovered in a currency (the "other currency") other than that in
which it is required to be paid (the "contractual currency"), then, to the
extent that the payment to the Bank (when converted at the then applicable
rate of exchange) falls short of the amount unpaid under this Facility
Letter, the Borrower shall, as a separate and independent obligation, fully
indemnify the Bank on demand against the amount of the shortfall. For the
purposes of this clause the expression "rate of exchange" means the rate at
which the Bank is able as soon as practicable after receipt to purchase the
contractual currency in London with the other currency.
11.6 If the UK moves to the third stage of EMU, the Bank shall be entitled to
make such changes to this Facility Letter as it reasonably considers are
necessary to reflect the changeover to the euro (including, without
limitation, the rounding (up or down) of fixed monetary amounts to
convenient fixed amounts in the euro and amending any provisions to reflect
the market conventions for a facility of the kind contemplated in this
Facility Letter).
11.7 A person who is not a party to this Facility Letter has no right under the
Contracts (Right of Third Parties) Act 1999 to enforce or to enjoy the
benefits of this Facility Letter.
12. Interpretation
12.1 In this Facility Letter, unless the context otherwise requires:
"Business Day" means a day on which the relevant London financial markets
and the Bank are ordinarily open to effect transactions of the kind
contemplated in this Facility Letter and, if payment is to be made in
euros, on which such payment system as the Bank chooses is operating for
the transfer of funds for same day value;
"EMU" means Economic and Monetary Union as contemplated in the Treaty
establishing the European Community, as amended from time to time;
"euro" and "(euro)" means the single currency of the participating Member
States adopted under Council Regulation (EC) No 974/98;
"Facility" means the facility made available under this Facility Letter (as
reduced from time to time in accordance with its provisions);
"Guarantor" includes any third party which has created a mortgage or other
security for all or part of the indebtedness owing by the Borrower to the
Bank;
"indebtedness" includes any obligation for the payment or repayment of
money, whether actual or contingent, present or future, secured or
unsecured, and whether incurred as principal or surety or otherwise;
"month" means a period starting on one day in a calendar month and ending
on the corresponding day in the next calendar month or, if that is not a
Business Day, on the next Business Day unless that falls in another
calendar month in which case it shall end on the preceding Business Day,
save that where a period starts on the last Business Day in a month or
there is no corresponding day in the month in which the period ends, that
period shall end on the last Business Day in the later month;
"Sterling" and "(pound)" means the lawful currency for the time being of
the UK;
"Subsidiary" means a subsidiary undertaking of the Borrower within the
meaning of Section 258 of the Companies Act 1985;
"UK" means the United Kingdom of Great Britain and Northern Ireland;
"UK Subsidiary" means any Subsidiary of the Borrower which is incorporated
in the UK;
"VAT" means value added tax or any similar tax substituted for it from time
to time.
12.2 References to any statutory provision includes any amended or re-enacted
version of such provision with effect from the date on which it comes into
force.
12.3 Save where the context otherwise requires, any expression in this Facility
Letter importing the singular shall include the plural and vice versa.
12.4 References to a time of the day are references to the time in London.
13. Conditions Precedent
The Facility will become available to the Borrower for drawing only upon
receipt by the Bank of the following in form and substance satisfactory to
the Bank:
(a) this Facility Letter accepted as required under clause 16 below;
(b) a certified true copy of a resolution of the Borrower's Board of
Directors:
(i) accepting the Facility and this offer on the terms and conditions
stated within this Facility Letter;
(ii) authorising a specified person, or persons, to countersign and
return to the Bank the enclosed duplicate of this Facility
Letter;
(iii) authorising the Bank to accept instructions and confirmations in
connection with the Facility signed in accordance with the Bank's
signing mandate current from time to time, and to accept
instructions in connection with drawings under the Sterling MML
and the BMRF, by telephone from any person specifically
authorised to give such telephone instructions; and
(iv) containing confirmed specimens of the signatures of those
officers referred to in (ii) and (iii) above, if not already
known to the Bank;
(c) the guarantee referred to in clause 3 above duly executed by the
guarantor specified in such clause together with such other documents
relating thereto as the Bank may require; and
(d) the telex number to which any notices from the Bank are to be sent
under the BMRF.
14. Governing Law
14.1 This Facility Letter shall be governed by and construed in accordance with
English law.
15. Notices
Every notice, request or other communication shall:
(a) be in writing delivered personally or by prepaid first class letter or
facsimile transmission;
(b) be deemed to have been received by the Borrower, in the case of a
letter when delivered personally or 48 hours after it has been sent by
first class post or, in the case of facsimile transmission, at the
time of transmission with a facsimile transmission report or other
appropriate evidence (provided that if the date of transmission is not
a Business Day it shall be deemed to have been received at the opening
of business on the next Business Day); and
(c) be sent (i) to the Borrower at the address stated at the beginning of
this Facility Letter and (ii) to the Bank at the address stated at the
beginning of this Facility Letter, or to such other address in England
as may be notified in writing by the relevant party to the other.
All communications by the Borrower shall be effective only on actual
receipt by the Bank.
16. Acceptance
If the Borrower wishes to accept this offer, this Facility Letter and the
enclosed duplicate should be signed below by an authorised officer on its
behalf and the signed duplicate returned to the Bank. This offer will
remain available until 30th June 2002, after which it will lapse if not
accepted.
Yours faithfully
for and on behalf of
BARCLAYS BANK PLC
David Berragan
Relationship Director
Accepted on the terms and conditions stated herein,
For and on behalf of
Hewitt Bacon & Woodrow Limited
/s/ Peter J. Morgan
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Peter J. Morgan
June 5, 2002
SCHEDULE A
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Sterling MML
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The Sterling MML may be drawn in one or more amounts, each drawing to be a
minimum amount of (pound)250,000 and multiples of (pound)1,000 thereafter for
periods of up to 6 months at the Borrower's option (each an "Interest Period")
but no drawing shall be made for an Interest Period with a maturity date of more
than three months beyond the Expiry Date.
When wishing to draw under the Sterling MML, the Borrower should telephone the
Bank's dealers on 020 7621 438 by 11.30 a.m. on the Business Day on which funds
are required stating the amount of the drawing, the Interest Period selected and
giving instructions for payment of the funds. Such instructions should be
confirmed in writing to the Bank at the earliest opportunity.
Interest on each drawing will consist of the aggregate of:
(i) the Bank's margin which will be a rate of 0.875% per annum,
(ii) the rate per cent per annum at which sterling deposits are offered by the
Bank in the London Interbank Market for delivery on the first day of an
Interest Period in an amount equal or substantially similar to the amount
being drawn down for a period equal or similar to such Interest Period,
and
(iii) any mandatory costs to compensate the Bank for the cost resulting from
the imposition from time to time under the Bank of England Act 1998
and/or by the Bank of England and/or the Financial Services Authority
(the "FSA") (or other United Kingdom governmental authorities or
agencies) of a requirement to place non-interest bearing cash ratio
deposits or Special Deposits (whether interest bearing or not) with the
Bank of England and/or pay fees to the FSA calculated by reference to
liabilities used to fund the sum.
Interest will be payable without deduction at the maturity of each drawing, and
calculated on the basis of actual days elapsed over a 365 day year (or on such
other day count basis as the Bank considers is consistent with the then
applicable market practice for facilities of this kind).
Each drawing, together with interest thereon, will be repaid by 12.00 noon on
its Interest Period maturity date in accordance with the provisions of clause 9
of this Facility Letter.
SCHEDULE B
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Sterling Overdraft
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The Sterling Overdraft will be available on the Borrower's current account at
the Bank's branch at 54 Lombard Street, London (the "Branch") with interest
charged at a rate of 1.0% per annum over the Bank's Base Rate current from time
to time. Interest together with other charges will be debited to the Borrower's
current account at the Branch quarterly in arrears in March, June, September and
December each year or at such other times as may be determined by the Bank, and
such interest will be calculated on the basis of actual days elapsed over a 365
day year (or on such other day count basis as the Bank considers is consistent
with the then applicable market practice for facilities of this kind).
SCHEDULE C
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BMRF
- ----
The BMRF will be available for drawing subject to the following terms and
conditions:
(a) Drawing
(i) The BMRF may be drawn in one or more amounts of a minimum amount
of (pound)250,000 and multiples of (pound)1,000 for minimum periods of
three Business Days;
(ii) when wishing to draw under the BMRF the Borrower should telephone the
Bank's dealers on 0171-696 2496 by no later than 11:30am on the day on
which funds are required stating the amount of the drawing. The amount
of the drawing will be credited to the Borrower's current account at
the Branch.
(iii) A drawing may not be requested on a day upon which a repayment is to
be made in accordance with sub-clause (c) below.
(b) Interest
(i) Interest will be charged at the aggregate of the Barclays Managed Rate
(the "BMR") and 0.275% per annum] and will be calculated on the basis
of actual days elapsed over a 365 day year (or on such other day count
basis as the Bank considers is consistent with the then applicable
market practice for facilities of this kind) up to and including the
15th of each month except that where the next following day is not a
Business Day interest will be calculated up to and including the day
falling immediately prior to the next following Business Day. Interest
will be debited to the Borrower's current account at the Branch on the
Business Day falling immediately after the 15th of each month;
(ii) the BMR current at the time of the inception of this BMRF and any
subsequent changes thereto will be advised to the Borrower by either
telex or telephone. In the event of a change in the BMR interest will
be applied at the new rate to balances outstanding at the close of
business on the day following the day on which either the telex is
sent or the telephone call is made except that where there is an
announcement of a change in the Bank's Base Rate which is effective on
that same day and the Bank has sent to the Borrower a telex advice or
made a telephone call by 11.00am of a change in the BMR, the new
interest rate may be applied to balances outstanding at the close of
business on that day.
(c) Repayment
(i) Each drawing under the BMRF must remain outstanding for a minimum
period of three Business Days and may not be repaid, except as
provided for in the Bank's Undertaking detailed below, until such
period has expired. Thereafter drawings will be consolidated and may
be repaid in whole or in part in minimum amounts of (pound)250,000. In
the event that the BMRF is repaid in part the residual balance shall
not be less than (pound)250,000;
(ii) when wishing to make a repayment under the BMRF the Borrower should
telephone the Bank on 0171-696 2496 by no later than 11.30a.m. noon
on the day of repayment stating the amount to be repaid. The amount
to be repaid will be debited to the Borrower's account at the
Branch.
(iii) A repayment may not be requested on a day upon which a drawing is to
be made in accordance with sub-clause (a) above.
(d) Confirmations
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All payment and delivery instructions must be confirmed in writing to the
Branch at the earliest opportunity.
(e) Bank's Undertaking
------------------
If the BMR is at any time equal to or more than the aggregate of 1% and the
Bank's Base Rate current from time to time the BMRF may be repaid in full
in accordance with sub-clause (c) above under advice to the Bank on the
telephone number detailed above, before 11:30am on the day of repayment.
(f) Indemnity
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The Borrower specifically releases and indemnifies the Bank from and
against the consequences of the Bank's failure and/or the failure of any
other person to receive any telex or telephone message in a form in which
it was despatched and from and against the consequences of any delay that
may occur during the course of the transmission of any such message.