EXHIBIT (4)(l)(4)
THIS DEED OF GUARANTEE AND INDEMNITY is made on June 21, 2002
BETWEEN
1. BANK ONE, NA of One Bank One Plaza-IL ▇-▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇ as administrative agent for the Lenders (as defined in the
Credit Agreement) (the "Administrative Agent", which expression
includes the Administrative Agent's successors in title and assigns)
AND
2. XEROX OVERSEAS HOLDINGS LIMITED of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ (registered in England no. 3275267); and
XEROX UK HOLDINGS LIMITED of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ (registered in England no. 3545477) (each a
"Guarantor" but together referred to as the "Guarantors").
NOW THIS DEED WITNESSES as follows:
1. Interpretation
1.1 Definitions
In this Deed:
"Administration" means administration under Part II of the Insolvency
▇▇▇ ▇▇▇▇.
"Business Day" means a day (other than a Saturday or a Sunday) on
which banks are open for business in London.
"Cash Collateralised Letter of Credit" means, at any time, any
outstanding Letter of Credit if (x) no Event of Default has occurred
and is continuing and (y) Xerox or the Principal shall have (i)
granted to the Collateral Agent, for the benefit of the Revolving
Lenders (or, if the obligations of the Revolving Lenders to reimburse
the applicable LC Issuing Banks have been terminated, to such LC
Issuing Banks), a security interest in Liquid Investments or (ii)
caused a bank acceptable to the Required Revolving Lenders or such LC
Issuing Banks, as the case may be, to issue a letter of credit naming
the Collateral Agent or such LC Issuing Banks as beneficiary) in
either case in an amount at least equal to 105% of the LC Exposure
with respect to such Letter of Credit (plus any accrued and unpaid
interest thereon) as of the date of release pursuant to Clause 7.1, on
terms and conditions and pursuant to documentation reasonably
satisfactory to the Required Revolving Lenders or such LC Issuing
Banks, as the case may be.
"Contingent Guaranteed Moneys" means, at any time, any Guaranteed
Moneys that are contingent in nature at such time, including (without
limitation) any obligation under any Loan Document which is:
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(i) an obligation to reimburse a Lender for drawings not yet made
under a Letter of Credit;
(ii) any other obligation (including any guarantee) that is
contingent in nature at such time; or
(iii) any obligation to provide collateral to secure any of the
oregoing types of obligation.
"Credit Agreement" means the amended and restated credit agreement
dated [ ], 2002 and made between Xerox Corporation, a New York
corporation, Xerox Capital (Europe) PLC and certain other Overseas
Borrowers, the Lenders party thereto, Bank One, NA, as Administrative
Agent, LC Issuing Bank and Collateral Agent, JPMorgan Chase Bank, as
Documentation Agent and Citibank, N.A., as Syndication Agent.
References to the "Credit Agreement" include that agreement as it has
been and may be novated and amended from time to time.
"Dissolution" of a person includes the bankruptcy, insolvency,
liquidation, amalgamation, reconstruction, reorganisation,
administration, administrative or other receivership, or dissolution
of that person, and any equivalent or analogous proceeding by whatever
name known and in whatever jurisdiction.
"Domestic Guarantee and Security Agreement" means the guarantee and
security agreement dated [ ] 2002 among Xerox Corporation, the
Subsidiary Guarantors party thereto and Bank One, NA as Collateral
Agent.
"Guaranteed Moneys" means amounts expressed to be due owing and
payable (including, without limitation, any obligation under any
guarantee or any obligation to provide collateral) by the Principal
under any of the Loan Documents (as amended, restated, supplemented or
otherwise modified from time to time) or under any promissory note
issued by the Principal pursuant to the Credit Agreement (as amended,
restated, supplemented or otherwise modified from time to time) to the
extent that such amounts are unpaid or, as the case may be, such
obligation is unfulfilled. These include amounts and obligations
currently due, those due in the future and those which may become due.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all Letters of Credit outstanding at such time plus (b) the
aggregate amount of all payments made by an LC Issuing Bank in respect
of a drawing under a Letter of Credit that have not yet been
reimbursed by the Principal at such time. The LC Exposure of any
Revolving Lender at any time will be its Revolving Percentage of the
total LC Exposure at such time.
"Letter of Credit" means any Letter of Credit issued for the account
of the Principal pursuant to the Credit Agreement.
"Liquid Investments" has the meaning given to it in the Domestic
Guarantee and Security Agreement.
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"Non-Contingent Guaranteed Moneys" means, at any time, any Guaranteed
Moneys that are not Contingent Guaranteed Moneys.
"Opinions" means [the Lovells opinion and the in-house opinion]
"Principal" means XEROX CAPITAL (EUROPE) PLC of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ (registered in England No.
3070508).
"Proceedings" means any proceeding, suit or action arising out of or
in connection with this Deed.
"Release Conditions" has the meaning given to it in Clause 7.1.
"Required Revolving Lenders" means, at any time, Revolving Lenders
holding at least a majority of the aggregate amount of the Revolving
Commitments with respect to the Principal or, if such Revolving
Commitments have been terminated, the Revolving Exposures with respect
to the Principal.
"Revolving Lender" means a Lender with a Revolving Commitment with
respect to the Principal or, if such Revolving Commitments have been
terminated or expired, a Lender with a Revolving Exposure with respect
to the Principal.
"Revolving Percentage" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments with respect to the
Principal represented by such Revolving Lender's Revolving Commitment
with respect to the Principal. If the Revolving Commitments with
respect to the Principal have terminated or expired, the Revolving
Percentages will be determined based on Revolving Exposures with
respect to the Principal.
"Secured Party Jurisdiction" has the meaning given to it in the
Domestic Guarantee and Security Agreement.
1.2 Definitions in the Credit Agreement
Expressions defined in the Credit Agreement have the same meanings
when used in this Deed. This does not, however, apply where the same
expression is also defined in this Deed.
1.3 References and Construction
In this Deed, unless otherwise specified:
(A) references to clauses are to clauses of this Deed;
(B) headings to clauses are for convenience only and are to be ignored
in construing this Deed;
(C) references to a "person" are to be construed so as to include any
individual, firm, company, government, state or agency of a state,
local or municipal authority, or any
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joint venture, association or partnership (whether or not having
separate legal personality);
(D) references to a "company" are to be construed so as to include
any company, corporation or other body corporate, wherever and
however incorporated or established;
(E) references to any statute or statutory provision are to be
construed as a reference to the same as it may have been, or may
from time to time be, amended, modified or re-enacted, and shall
include a reference to all bye-laws, instruments, orders and
regulations for the time being made thereunder or deriving
validity therefrom; and
(F) references to times of the day are to London time.
2. Guarantee
The Guarantors unconditionally and irrevocably jointly and severally
guarantee to the Administrative Agent the due and punctual payment of
the Guaranteed Moneys and agree that, if at any time or from time to
time any of the Guaranteed Moneys are not paid in full on the due date
therefor (whether at their stated date of payment, by acceleration, on
demand or otherwise), they will immediately upon demand therefor
unconditionally pay to the Administrative Agent the moneys which have
not been paid as aforesaid.
3. Indemnity
As an original and independent obligation under this Deed, the
Guarantors jointly and severally shall:
(A) indemnify the Administrative Agent and keep the Administrative
Agent indemnified against any cost, loss, expense or liability of
whatever kind resulting from the failure by the Principal to make
due and punctual payment of any of the Guaranteed Moneys or
resulting from any of the obligations under the Credit Agreement
being or becoming void, voidable, unenforceable or ineffective
against the Principal (including, but without limitation, all
legal and other costs, charges and out of pocket expenses
reasonably incurred by the Administrative Agent in connection
with preserving or enforcing, or attempting to preserve or
enforce, its rights under this Deed); and
(B) pay on demand the amount of such cost, loss, expense or liability
whether or not the Administrative Agent has attempted to enforce
any rights against the Principal or any other person or
otherwise.
4. Limitation on guarantee and indemnity
The guarantee contained in Clause 2, the indemnity contained in Clause
3 and each other right of recovery against the Guarantors under this
Deed:
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(A) do not extend to any payment to be made by the Principal under
the terms of the Credit Agreement in respect of any cost, loss,
expense or liability but which the Principal fails to make,
unless such failure results from any of the obligations under the
Credit Agreement being or becoming void, voidable, unenforceable
or ineffective against the Principal; and
(B) do not entitle the Administrative Agent to recover the same
amount more than once under separate provisions of this Deed.
5. Joint and several obligations
(A) The Guarantors' obligations expressed to be owed under this Deed
shall take effect as joint and several obligations and any demand
for payment made by the Administrative Agent to any one or more
of the Guarantors shall be deemed to be a demand made to each of
the Guarantors. This Guarantee shall not be revoked or impaired
as to any of the Guarantors by the Dissolution of any other.
(B) The Administrative Agent may release or discharge any Guarantor
from its obligations under this Guarantee or accept any
composition from or make any other arrangements with any
Guarantor without releasing or discharging any other or otherwise
prejudicing or affecting the Administrative Agent's rights and
remedies against any other.
6. Continuing Obligations
The obligations of the Guarantors under this Deed shall be continuing
obligations and shall not be satisfied, discharged or affected by any
intermediate payment or settlement of account.
7. Releases of Security
7.1 Subject to Clause 7.2, each Guarantor shall be released from the
guarantee given by it under this Deed in accordance with Section 9.02
or 9.03, as the case may be, of the Credit Agreement. "Release
Conditions" means, in relation to each Guarantor, each of the
following being true:
(A) all Non-Contingent Guaranteed Moneys have been paid or discharged
in full;
(B) (i) the Revolving Commitments with respect to the Principal have
been terminated or otherwise reduced to zero; or
(ii) an Election to Terminate has been delivered in respect of
the Principal pursuant to Section 2.19 of the Credit
Agreement; and
(C) no Contingent Guaranteed Moneys, other than with respect to any
Cash Collateralised Letter of Credit, remain outstanding.
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7.2 Release Void if Payment Avoided
Any release of a Guarantor shall be subject to the condition that if
any payment of Guaranteed Moneys shall be avoided, reduced or
invalidated by virtue of any applicable law or for any other reason
whatsoever, then such release shall be void and of no effect, and the
Administrative Agent may recover immediately the value or amount, or
(as the case may be) the reduction in value or amount, thereof from
that Guarantor as if such release had not occurred.
8. Other Guarantees and Security
The obligations of each Guarantor under this Deed:
(A) are in addition to and not in substitution for any other
guarantee and/or indemnity or any security which the
Administrative Agent may at any time hold for the payment of the
Guaranteed Moneys; and
(B) may be enforced by the Administrative Agent in its discretion
without first having recourse to any such other guarantee and/or
indemnity or any such security, without taking any steps or
proceedings against the Principal or any other person, and
without resorting to any other means of payment.
9. Payments in Gross
All dividends, compositions and moneys received by the Administrative
Agent from the Principal or from any other person which are capable of
being applied by the Administrative Agent in reduction of the
Guaranteed Moneys shall be regarded for all purposes as payments in
gross and accordingly shall not prejudice the right of the
Administrative Agent to recover from the Guarantors to the full extent
of this Deed the ultimate balance which, after the receipt of such
dividends, compositions and moneys, may remain owing to the
Administrative Agent.
10. Suspense Account
For the purpose of enabling the Administrative Agent to ▇▇▇ the
Principal or any other surety or prove in the Dissolution of the
Principal or any other surety for the whole of the Guaranteed Moneys,
or to preserve intact the liability of any other party, the
Administrative Agent may, for as long as the Guaranteed Moneys have
not been discharged and satisfied in full, at its sole discretion,
place and retain on a suspense account, for as long as it considers
fit, any moneys received, recovered or realised under or in connection
with this Deed or under any other guarantee and/or indemnity or any
security without any obligation on the part of the Administrative
Agent to apply the same in or towards the discharge of the Guaranteed
Moneys except when such moneys would be sufficient to discharge the
Guaranteed Moneys in full in which case they shall be applied to such
discharge and without any right on the part of the Guarantors to ▇▇▇
the Principal or any other surety or to prove in the Dissolution of
the Principal or any other surety in competition with or so as to
diminish any dividend or other
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advantage that would or might come to the Administrative Agent, or to
treat the liability of the Principal or any other surety as
diminished.
11. Certificate to Be Conclusive Evidence
A copy of a certificate signed by an officer of the Administrative
Agent as to the amount of any indebtedness comprised in the Guaranteed
Moneys:
(A) calculated in accordance with Section 2.08(e) of the Credit
Agreement shall, in the absence of manifest error, be prima facie
evidence; and
(B) decided pursuant to any judgment against the Principal shall, in
the absence of manifest error, be conclusive evidence for the
purposes of any Proceedings,
against the Guarantors that such amount is in fact due and payable by
the Principal to the Administrative Agent.
12. Principal Debtor
As an original and independent obligation under this Deed and without
prejudice to any other provision in this Deed, the Guarantors jointly
and severally agree that any of the Guaranteed Moneys which may not be
recoverable from the Guarantors on the footing of a guarantee whether
by reason of any legal limitation or incapacity on or of the Principal
or by reason of any other fact or circumstance whatsoever (and whether
any such fact or circumstance shall have been known to the
Administrative Agent or not) shall nevertheless be recoverable from
the Guarantors as though the same had been incurred by the Guarantors
as sole or principal debtor and shall be paid by the Guarantors on
demand.
13. No Discharge of Guarantors
Subject to the terms of Clause 7, no Guarantor shall be released or
discharged from any of its obligations under this Deed, nor shall any
of such obligations be in any way prejudiced or affected, by:
(A) any invalidity, unenforceability, illegality or voidability of
any obligation expressed to be assumed or owed by the Principal
under or in connection with the Credit Agreement; or
(B) any variation or amendment of, or waiver or release granted under
or in connection with, the Credit Agreement or other document; or
(C) time being given, or any other indulgence or concession being
granted, by the Administrative Agent to the Principal or any
other person; or
(D) the taking, holding, failure to take or hold, varying,
realisation, non-enforcement, non-perfection or release by the
Administrative Agent or any other person of any other guarantee
and/or indemnity or any security for any of the Guaranteed
Moneys; or
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(E) the Dissolution of the Principal or any other person; or
(F) any change in the constitution of the Principal; or
(G) any amalgamation, merger or reconstruction that may be effected
by the Administrative Agent with any other person or any sale or
transfer of the whole or any part of the undertaking and assets
of the Administrative Agent to any other person; or
(H) the existence of any claim, set-off or other rights which any of
the Guarantors may have at any time against the Principal, the
Administrative Agent or any other person, or which the Principal
may have at any time against the Administrative Agent, whether in
connection with the Credit Agreement or otherwise; or
(I) the granting by the Administrative Agent to the Principal of any
other financial accommodation or the withdrawal or restriction by
the Administrative Agent of any financial accommodation, or the
absence of any notice to any of the Guarantors of any such
granting, withdrawal or restriction; or
(J) any arrangement or compromise entered into by the Administrative
Agent with the Principal or any other person; or
(K) any other thing done or omitted or neglected to be done by the
Administrative Agent or any other person or any other dealing,
fact, matter or thing (including, but without limitation, any
circumstances whatsoever affecting or preventing recovery of
amounts under the Credit Agreement) which, but for this
provision, might operate to exonerate or discharge any of the
Guarantors from, or otherwise prejudice or affect, any of the
Guarantors' obligations under this Deed.
14. Guarantors Not to Take Security
14.1 No Security Presently Held
Each of the Guarantors represents and warrants that it has not taken
or received any security from the Principal or any other surety for or
in respect of that Guarantor's obligations under this Deed.
14.2 Guarantors Shall Not Take Security
No Guarantor shall take or receive any security from the Principal or
any other surety for or in respect of that Guarantor's obligations
under this Deed.
14.3 Security Held on Trust
If at any time any of the Guarantors has the benefit of any security
in breach of this clause 14, it shall hold such security on trust for
the Administrative Agent, and shall, upon request by the
Administrative Agent, transfer or assign such security to the
Administrative Agent as security for that Guarantor's obligations
under this Deed.
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This clause 14.3 is intended to give rise to rights in contract and
equitable rights only and is not intended to constitute, create or
give rise to a security interest of any kind over any asset of
Guarantor. If and to the extent that any right conferred under this
clause 14.3 would, notwithstanding the foregoing sentence, constitute,
create or give rise to any security interest, such right shall be of
no effect.
15. No Right of Subrogation
Until the Guaranteed Moneys have been discharged and satisfied in full
no Guarantor shall, without the Administrative Agent's prior written
consent (acting on the instructions of each of the Revolving Lenders):
(A) be subrogated to any rights of the Administrative Agent arising
under the Credit Agreement, or in respect of any proof in the
Dissolution of the Principal, or otherwise howsoever; or
(B) in respect of any moneys payable or paid under this Deed, seek to
enforce repayment from the Principal or any other surety, whether
by subrogation, indemnity, contribution or otherwise, or to
exercise any other right, claim or remedy of any kind which may
accrue to it in respect of the amount so paid or payable; or
(C) claim payment of any other moneys for the time being due to it by
the Principal or any other surety on any account whatsoever, or
exercise any other right, claim or remedy which it has in respect
thereof; or
(D) be entitled to any right of a surety (including any right of
contribution from any other surety) discharging, in whole or in
part, its liability in respect of the principal debt; or
(E) be entitled to have or exercise any right as a surety (including
any right of contribution from any other surety) in competition
with the Administrative Agent; or
(F) claim any set-off or assert any counterclaim against the
Principal or any other surety in relation to any liability of
such Guarantor to the Principal or any other surety.
16. No Competing Proofs
Until the Guaranteed Moneys have been discharged and satisfied in
full, no Guarantor shall, in the event of the Dissolution of the
Principal or any other surety, claim or prove in competition with the
Administrative Agent, or accept any direct or indirect payment or
distribution, in respect of any moneys owing to such Guarantor by the
Principal or any such other surety on any account whatsoever provided
that such Guarantor may, with the prior written consent (such consent
not to be unreasonably withheld or delayed) of the Administrative
Agent, claim or prove for the purposes of preserving a claim it may
have, and shall, if so directed by the Administrative Agent, prove for
the whole or any part of the moneys due to such Guarantor from the
Principal or any other surety on terms that the benefit of such proof
and of all moneys to be received by such Guarantor in respect thereof
shall be held on trust for the Administrative Agent and applied in
discharging such Guarantor's obligations
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under this Deed. If any balance of such moneys shall remain after such
Guarantor's obligations have been discharged in full, such balance
shall forthwith be released from such trust and shall belong
absolutely and beneficially to that Guarantor.
17. Representations and Warranties
17.1 Initial Representations
Each Guarantor confirms that each of the following is true:
(A) Legal Status
It is a company duly incorporated and validly existing under the laws
of England.
(B) Corporate powers, Authorisations and Contraventions
The execution and delivery of this Deed by it and the performance by
it of its obligations under this Deed (i) are within its corporate or
other powers, (ii) have been duly authorised by all necessary
corporate or other action, (iii) require no consent or approval of,
registration or filing with, any Governmental Authority except such as
have been obtained or made and are in full force and effect, (iv) do
not violate any Applicable Law or its Memorandum or Articles of
Association, (v) do not violate any order of any Governmental
Authority except in any such case where such violation could not
reasonably be expected to result in a Material Adverse Effect, (vi) do
not violate or result in a default under any indenture, trust deed in
relation to debt securities or material agreement or other instrument
binding upon it and (vii) do not result in, or oblige it to create,
any Security over its assets.
(C) Binding obligations
This Deed has been duly signed and delivered by it. Its obligations
described in this Deed are its legal, valid and binding obligations in
accordance with their terms except as may be limited by:
(i) bankruptcy, insolvency or other laws of general application
affecting creditors' rights;
(ii) application of equitable principles;
(iii) the non-availability of the equitable remedies of specific
performance or any other relief; or
(iv) any qualification contained in [the Opinions].
(D) Ranking of obligations
Its obligations under this Deed rank (subject to the next sentence) at
least equally with all its other present and future unsecured and
unsubordinated obligations. Certain categories of its
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other obligations will, however, be preferred in a liquidation by
virtue of mandatory provisions of statute.
(E) Correctness of information
All information supplied and to be supplied on its behalf to the
Administrative Agent in connection with this Deed is true, accurate and
complete in all material respects.
(F) Stamp duty
No stamp, registration or similar tax is payable, and no filing or
registration is required, in connection with the execution, performance
or enforcement of this Deed in the United Kingdom.
(G) Insolvency
No steps have been taken, and no proceedings started or (to the best of
the Guarantor's knowledge and belief) threatened, for the winding-up,
or for the appointment of a receiver, administrator, liquidator or
other officer, of the Guarantor or any of its assets. No analogous
event has occurred in any jurisdiction.
17.2 Repetition
The representations in clause 17.1 will be deemed repeated by each of
the Guarantors on the date of each Borrowing by the Principal and the
date of each issuance, amendment, renewal or extension of a Letter of
Credit issued to the Principal. This repetition will be with reference
to the facts on that day.
18. Currency
18.1 Payments to be Made in Same Currency
All payments to be made under this Deed shall be made in the currency
or currencies in which the Guaranteed Moneys were expressed to be
payable by the Principal, and strictly in accordance with the terms of
the Credit Agreement.
18.2 Currency Indemnity
If, under any applicable law, whether pursuant to a judgment against
any of the Guarantors or the Dissolution of any of the Guarantors or
for any other reason, any payment under or in connection with this Deed
is made or falls to be satisfied in a currency (the "Other Currency")
other than the currency in which the relevant payment is expressed to
be payable (the "Required Currency"), then, to the extent that the
payment actually received by the Administrative Agent (when converted
into the Required Currency at the rate of exchange on the date of
payment or, if it is not practicable for the Administrative Agent to
make the conversion on that date, at the rate of exchange as soon
afterwards as it is practicable for the Administrative Agent to do so
or, in the case of a Dissolution, at the rate of exchange on the
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latest date permitted by applicable law for the determination of
liabilities in such Dissolution) falls short of the amount expressed to
be due or payable under or in connection with this Deed, the Guarantors
jointly and severally shall, as an original and independent obligation
under this Deed, indemnify and hold the Administrative Agent harmless
against the amount of such shortfall. For the purpose of this clause
18, "rate of exchange" means the rate at which the Administrative Agent
is able on the relevant date to purchase the Required Currency with the
Other Currency and shall take into account any commission, premium and
other costs of exchange and Taxes payable in connection with such
purchase.
19. No Set-off or Withholding by Guarantors
19.1 No Set-off
All payments to be made by any Guarantor under this Deed shall be made
in full without any set-off, restriction or condition and without any
deduction for or on account of any counterclaim.
19.2 No Withholding, Gross-Up and Tax Indemnity
In this Clause 19.2 "Covered Taxes" means all present and future Taxes
(other than income or franchise taxes imposed on (or measured by) the
net income of a Revolving Lender by a Lender Party Jurisdiction of that
Revolving Lender) including any such Taxes imposed with respect to this
Deed, the execution, registration, enforcement, notarization or other
formalization of any thereof, and any payments of principal, interest,
charges, fees, commissions or other amounts made on, under or in
respect thereof. Each Guarantor agrees that:-
(a) All payments of Guaranteed Moneys and all other amounts payable on,
under or in respect of this Deed by such Guarantor, including, without
limitation, amounts payable by such Guarantor under paragraph (b) of
this Clause 19.2, shall be made free and clear of and without deduction
or withholding for or on account of Covered Taxes save as may be
required by law, provided that, if any Guarantor shall be required by
law to deduct or withhold any Covered Taxes from such payments, then
(i) the sum payable will be increased as necessary so that, after all
required deductions or withholdings (including deductions or
withholdings applicable to additional sums payable under this Section)
are made, each relevant Revolving Lender receives an amount equal to
the sum it would have received had no such deductions or withholdings
been made, (ii) such Guarantor shall make such deductions or
withholdings and (iii) such Guarantor shall pay the full amount
deducted or withheld to the relevant Governmental Authority in
accordance with applicable law. The parties agree to co-operate and
provide information with respect to United Kingdom, United States and
foreign withholding tax matters relating to payments under this Deed in
a manner consistent with the principles of Section 2.16(e) of the
Credit Agreement, mutatis mutandis. The parties also agree that the
provisions of Section 2.16(f) of the Credit Agreement apply, mutatis
mutandis, to Covered Taxes that are deducted, withheld or paid by a
Guarantor pursuant to this Deed.
(b) Each Guarantor shall indemnify each Revolving Lender, within 15
Business Days after written demand therefor, for the full amount of any
Covered Taxes paid or incurred by such
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Revolving Lender with respect to any payment by or obligation of such
Guarantor under or with respect to this Deed (including Covered Taxes
imposed or asserted on or attributable to amounts payable under this
Clause 19.2) and any expenses arising therefrom or with respect
thereto, whether or not such Covered Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. Each
Revolving Lender shall make a good faith effort to verify that such
Covered Taxes are correctly and legally imposed or asserted by the
relevant Governmental Authority. An officer's certificate as to the
amount of any such payment delivered to Xerox by a Revolving Lender on
its own behalf, or by the Administrative Agent on behalf of a Revolving
Lender, shall be conclusive absent manifest error.
(c) Within 15 Business Days after any Guarantor pays any Covered Taxes
to a Governmental Authority in accordance with this Clause 19.2, such
Guarantor shall certify to the Administrative Agent's reasonable
satisfaction that it has so paid such Covered Taxes. If an original or
a certified copy of a receipt issued by such Governmental Authority
evidencing such payment is available, the Guarantor shall deliver the
same to the Administrative Agent as soon as is practicable. Each
Guarantor shall promptly furnish to each Revolving Lender any other
information, documents and receipts that the Revolving Lender may from
time to time reasonably request to establish to its satisfaction that
full and timely payment of all Covered Taxes has been made. The
applicable Guarantor will be deemed to have satisfied the requirements
of this Clause 19.2(c) if it has furnished such information, documents
and/or receipts to the Administrative Agent.
(d) Notwithstanding paragraphs (a) and (b) above, the payment increases
and indemnities pursuant to those paragraphs will not apply to the
payment of any Guaranteed Moneys to the extent that (in the absence of
this paragraph (d)) the Revolving Lender would thereby receive a net
cash payment in respect of the Guaranteed Moneys greater than if the
Guaranteed Moneys had been paid by the Borrower.
20. Set-off by Revolving Lenders
20.1 Revolving Lenders May Set-off
Each of the Revolving Lenders and their respective Affiliates may,
without notice to the Guarantors and without prejudice to any of the
other rights of such Revolving Lender or its Affiliate, set off any
matured obligation owed by any Guarantor under this Deed to such
Revolving Lender or its Affiliate against any obligation (whether or
not matured) owed by such Revolving Lender or its Affiliate to such
Guarantor, regardless of the place of payment, booking branch or
currency of such obligations.
20.2 Different Currencies
If the obligations referred to in clause 20.1 are in different
currencies, then, for the purpose of any such set-off, such Revolving
Lender or its Affiliate may convert any such obligations at the rate of
exchange determined by such Revolving Lender or its Affiliate, acting
reasonably to be prevailing at the date of set-off.
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20.3 No Security Interest
This clause 20 is intended to give rise to rights in contract only and
is not intended to constitute, create or give rise to a security
interest of any kind over any asset of Guarantor. If and to the extent
that any right conferred under this clause 20 would, notwithstanding
the foregoing sentence, constitute, create or give rise to any security
interest, such right shall be of no effect.
21. Communications
21.1 Communications to Be in Writing
Any communication given or made under or in connection with the matters
contemplated by this Deed shall be in writing (other than writing on
the screen of a visual display unit or other similar device which shall
not be treated as writing for the purposes of this clause 21.1).
21.2 Deemed Delivery
Any such communication shall be addressed as provided in clause 21.3
and, if so addressed, shall be deemed to have been duly given on the
date of receipt.
21.3 Parties' Details
The relevant details of each party for the purposes of this Deed,
subject to clause 21.4, are:
Party Attention Address Telex No. Fax No.
----- --------- ------- --------- -------
BANK ONE, NA [ ] [ ] [ ] [ ]
XEROX OVERSEAS
HOLDINGS LIMITED
XEROX UK HOLDINGS
LIMITED
21.4 Change of Details
Any party may notify the other parties at any time of a change to its
details for the purposes of clause 21.3 provided that such notification
shall only be effective on:
(A) the date specified in the notification as the date on which
the change is to take place; or
15
(B) if no date is specified or the date specified is less than
five Business Days after the date on which notice is given,
the date falling five Business Days after notice of any such
change has been given.
22. Remedies and Waivers
22.1 Delay
No delay or omission on the part of the Administrative Agent in
exercising any right, power or remedy provided by law or under this
Deed shall impair such right, power or remedy or operate as a waiver
thereof or of any other right, power or remedy.
22.2 Single or Partial Exercise
The single or partial exercise by the Administrative Agent of any
right, power or remedy provided by law or under this Deed shall not
preclude any other or further exercise thereof or the exercise of any
other right, power or remedy.
22.3 Remedies to Be Cumulative
The rights, powers and remedies provided in this Deed are cumulative
with, and not exclusive of, any rights, powers and remedies provided by
law.
23. Invalidity
If at any time any provision of this Deed is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, neither:
(A) the legality, validity or enforceability in that jurisdiction
of any other provision of this Deed; nor
(B) the legality, validity or enforceability under the law of any
other jurisdiction of that or any other provision of this
Deed,
shall be affected or impaired.
24. Assignment
The Administrative Agent may at any time, without the consent of the
Guarantors, assign or transfer the whole or, as the case may be, any
part of the Administrative Agent's rights under this Deed to any person
to whom the whole or any part of the Administrative Agent's rights
under the Credit Agreement may be assigned or transferred.
25. Deed the Property of the Administrative Agent
The paper on which this Deed is written shall remain at all times the
property of the Administrative Agent.
16
26. Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇
The parties to this agreement do not intend that any term of this
agreement should be enforceable, by virtue of the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇, by any person who is not a party to this
agreement.
27. Governing Law
This Deed shall be governed by and construed in accordance with English
law.
28. Jurisdiction
28.1 The courts of England are to have jurisdiction to settle any dispute
arising out of or in connection with this Deed. Any Proceedings may
therefore be brought in the English courts. This jurisdiction agreement
is irrevocable and is for the exclusive benefit of the Administrative
Agent. The Administrative Agent therefore is to retain the right to
bring Proceedings in any court which has jurisdiction by virtue of
rules which would be applicable apart from this jurisdiction agreement.
Nothing contained in this clause 28 shall limit the right of the
Administrative Agent to take Proceedings against any Guarantor in any
other court or in the courts of more than one jurisdiction at the same
time.
28.2 Each Guarantor irrevocably waives (and irrevocably agrees not to raise)
any objection, on the ground of forum non conveniens or on any other
ground, to the taking of Proceedings in any court referred to in this
clause 28. Each party also irrevocably agrees that a judgement against
it in Proceedings brought in any jurisdiction referred to in this
clause 28 shall be conclusive and binding upon it and may be enforced
in any other jurisdiction.
IN WITNESS WHEREOF the Guarantors have executed this document as a deed the day
and year first before written.
GUARANTORS
Executed as a deed by XEROX OVERSEAS
HOLDINGS LIMITED acting by [a director and its
secretary/two directors] _________________________
Director
_________________________
[Secretary/Director]
17
Executed as a deed by XEROX UK HOLDINGS
LIMITED acting by [a director and its
secretary/two directors] _________________________
Director
_________________________
[Secretary/Director]
ADMINISTRATIVE AGENT
Executed as a deed by
BANK ONE, NA
acting by _________________________
under its authority Authorised Signatory(ies)
Exhibit C-4
DATED 2002
-----------------------------
BANK ONE, NA
as Administrative Agent
and
XEROX OVERSEAS HOLDINGS LIMITED
XEROX UK HOLDINGS LIMITED
______________________________
DEED OF GUARANTEE
AND INDEMNITY
relating to obligations
of
XEROX CAPITAL (EUROPE) PLC
under the CREDIT AGREEMENT dated
[ ] 2002
______________________________
▇▇▇▇▇▇▇▇▇ and May
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
RS/GMS
CONTENTS
Page
----
1. Interpretation 1
2. Guarantee 4
3. Indemnity 4
4. Limitation on guarantee and indemnity 4
5. Joint and several obligations 5
6. Continuing Obligations 5
7. Releases and Retention of Security 5
8. Other Guarantees and Security 6
9. Payments in Gross 6
10. Suspense Account 6
11. Certificate to Be Conclusive Evidence 7
12. Principal Debtor 7
13. No Discharge of Guarantors 7
14. Guarantors Not to Take Security 8
15. No Right of Subrogation 9
16. No Competing Proofs 9
17. Representations and Warranties 10
18. Currency 11
19. No Set-off or Withholding by ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. Set-off by Revolving Lenders 13
21. Communications 14
22. Remedies and Waivers 15
23. Invalidity 15
24. Assignment 15
25. Deed the Property of the Administrative Agent 15
26. Contracts (Rights of Third Parties) Act 1999 16
27. Governing Law 16
28. Jurisdiction 16