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Sample Business ContractsHome: Sample Business Contracts:
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CREDIT AGREEMENT
Dated as of July 19, 2002
among
GETTY IMAGES, INC.,
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Security Trustee, Swing Line Lender
and
L/C Issuer,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
[LOGO]
Bank of America
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<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
------- ----
<S> <C>
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
1.01 Defined Terms.........................................................................................1
1.02 Other Interpretive Provisions........................................................................25
1.03 Accounting Terms.....................................................................................25
1.04 Rounding.............................................................................................26
1.05 References to Agreements and Laws....................................................................26
1.06 Letter of Credit Amounts.............................................................................26
1.07 Exchange Rates; Currency Equivalents.................................................................26
1.08 Additional Alternative Currencies....................................................................27
1.09 Exchange Rates; Currency Equivalents.................................................................27
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS................................................................28
2.01 Committed Loans......................................................................................28
2.02 Borrowings, Conversions and Continuations of Committed Loans.........................................28
2.03 Letters of Credit....................................................................................30
2.04 Swing Line Loans.....................................................................................37
2.05 Prepayments..........................................................................................40
2.06 Mandatory Prepayment of Loans........................................................................41
2.07 Reduction or Termination of Commitments..............................................................42
2.08 Repayment of Loans...................................................................................42
2.09 Interest.............................................................................................42
2.10 Fees.................................................................................................43
2.11 Computation of Interest and Fees.....................................................................43
2.12 Evidence of Debt.....................................................................................44
2.13 Payments Generally...................................................................................44
2.14 Sharing of Payments..................................................................................46
2.15 Increase in Commitments..............................................................................47
2.16 Security and Guaranty................................................................................48
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY..............................................................48
3.01 Taxes................................................................................................48
3.02 Illegality...........................................................................................49
3.03 Inability to Determine Rates.........................................................................50
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Rate Loans.............50
3.05 Funding Losses.......................................................................................51
3.06 Matters Applicable to all Requests for Compensation..................................................52
3.07 Survival.............................................................................................52
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS............................................................52
4.01 Conditions of Initial Credit Extension...............................................................52
4.02 Conditions to all Credit Extensions and Conversions and Continuations................................54
ARTICLE V. REPRESENTATIONS AND WARRANTIES........................................................................55
5.01 Existence, Qualification and Power; Compliance with Laws.............................................55
5.02 Authorization; No Contravention......................................................................55
</TABLE>
i
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<TABLE>
<S> <C>
5.03 Governmental Authorization; Other Consents........................................................... 56
5.04 Binding Effect....................................................................................... 56
5.05 Financial Statements; No Material Adverse Effect..................................................... 56
5.06 Litigation........................................................................................... 56
5.07 No Default........................................................................................... 57
5.08 Ownership of Property; Liens......................................................................... 57
5.09 Environmental Compliance............................................................................. 57
5.10 Insurance............................................................................................ 57
5.11 Taxes................................................................................................ 57
5.12 ERISA Compliance..................................................................................... 57
5.13 Subsidiaries......................................................................................... 58
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act....................... 58
5.15 Intellectual Property; Etc........................................................................... 58
5.16 Solvency............................................................................................. 59
5.17 Collateral Documents................................................................................. 59
5.18 Disclosure........................................................................................... 59
ARTICLE VI. AFFIRMATIVE COVENANTS................................................................................ 59
6.01 Financial Statements................................................................................. 59
6.02 Certificates; Other Information...................................................................... 60
6.03 Notices.............................................................................................. 61
6.04 Payment of Obligations............................................................................... 62
6.05 Preservation of Existence, Etc....................................................................... 62
6.06 Maintenance of Properties............................................................................ 62
6.07 Maintenance of Insurance............................................................................. 62
6.08 Compliance with Laws................................................................................. 62
6.09 Books and Records.................................................................................... 63
6.10 Inspection Rights.................................................................................... 63
6.11 Compliance with ERISA................................................................................ 63
6.12 Subsidiaries; Additional Guarantors; Pledge of Capital Stock......................................... 63
6.13 Intellectual Property................................................................................ 65
6.14 Use of Proceeds...................................................................................... 65
6.15 Corporate Separateness............................................................................... 65
6.16 Further Assurances................................................................................... 65
ARTICLE VII. NEGATIVE COVENANTS.................................................................................. 66
7.01 Liens................................................................................................ 66
7.02 Investments.......................................................................................... 67
7.03 Indebtedness......................................................................................... 68
7.04 Fundamental Changes.................................................................................. 69
7.05 Dispositions......................................................................................... 70
7.06 Lease Obligations.................................................................................... 71
7.07 Restricted Payments.................................................................................. 71
7.08 ERISA................................................................................................ 71
7.09 Change in Nature of Business......................................................................... 72
7.10 Transactions with Affiliates......................................................................... 72
7.11 Burdensome Agreements................................................................................ 72
7.12 Use of Proceeds...................................................................................... 72
7.13 Financial Covenants.................................................................................. 72
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES................................................................. 73
8.01 Events of Default................................................................................. 73
8.02 Remedies Upon Event of Default.................................................................... 75
8.03 Application of Funds.............................................................................. 76
ARTICLE IX. ADMINISTRATIVE AGENT AND SECURITY TRUSTEE........................................................ 77
9.01 Appointment and Authorization of Administrative Agent............................................. 77
9.02 Delegation of Duties.............................................................................. 78
9.03 Liability of Administrative Agent................................................................. 78
9.04 Reliance by Administrative Agent.................................................................. 78
9.05 Notice of Default................................................................................. 79
9.06 Credit Decision; Disclosure of Information by Administrative Agent................................ 79
9.07 Indemnification of Administrative Agent........................................................... 80
9.08 Administrative Agent in its Individual Capacity................................................... 80
9.09 Successor Administrative Agent.................................................................... 80
9.10 Collateral and Guaranty Matters................................................................... 81
9.11 Appointment of Security Trustee................................................................... 82
9.12 Successor Security Trustee........................................................................ 82
9.13 Protection of Security Trustee.................................................................... 82
9.14 Other Agents; Lead Managers....................................................................... 82
ARTICLE X. MISCELLANEOUS..................................................................................... 83
10.01 Amendments, Etc................................................................................... 83
10.02 Notices and Other Communications; Facsimile Copies................................................ 84
10.03 No Waiver; Cumulative Remedies.................................................................... 85
10.04 Attorney Costs, Expenses and Taxes................................................................ 85
10.05 Indemnification by the Borrower................................................................... 86
10.06 Payments Set Aside................................................................................ 87
10.07 Successors and Assigns............................................................................ 87
10.08 Confidentiality................................................................................... 90
10.09 Set-off........................................................................................... 91
10.10 Interest Rate Limitation.......................................................................... 91
10.11 Counterparts...................................................................................... 91
10.12 Integration....................................................................................... 91
10.13 Survival of Representations and Warranties........................................................ 92
10.14 Severability...................................................................................... 92
10.15 Tax Forms......................................................................................... 92
10.16 Governing Law..................................................................................... 93
10.17 Waiver of Right to Trial by Jury.................................................................. 94
10.18 Mandatory Arbitration............................................................................. 94
10.19 Designated Senior Indebtedness.................................................................... 95
10.20 Time of the Essence............................................................................... 95
10.21 Judgment Currency................................................................................. 95
10.22 Oral Agreements................................................................................... 96
</TABLE>
iii
<PAGE>
SCHEDULES
1.01 Mandatory Cost Rate
2.01 Commitments and Pro Rata Shares
5.06 Litigation
5.09 Environmental Matters
5.13 Subsidiaries and Other Equity Investments
5.15 Intellectual Property
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.06 Existing Leases
10.02 Eurocurrency and Domestic Lending Offices, Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C-1 Committed Loan Note
C-2 Swing Line Note
D Guaranty Agreement
E-1 Borrower Security Agreement
E-2 Guarantor Security Agreement
E-3 Collateral Account Security Agreement
E-4 Getty Communications Security Agreement
F Collateral Account Control Agreement
G-1 Borrower Pledge Agreement
G-2 Getty Communications Pledge Agreement
H Compliance Certificate
I Assignment and Assumption
J Opinion of Counsel
iv
<PAGE>
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of July 19,
2002, among GETTY IMAGES, INC., a Delaware corporation (the "Borrower"), each
lender from time to time party hereto (collectively, the "Lenders" and
individually, a "Lender") and BANK OF AMERICA, N.A., a national banking
association, as Administrative Agent, Security Trustee, Swing Line Lender.
The Borrower has requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and 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:
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"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.
"Affiliate" means, with respect to any 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. "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. Without limiting the generality
of the foregoing, (i) in determining whether a Person is Controlled by a Loan
Party, such Person shall be deemed to be Controlled by a Loan Party if such Loan
Party possesses, directly or indirectly, power to vote 20% or more of the
securities having ordinary voting power for the election of directors, managing
general partners or the equivalent and (ii) in determining whether a Person is
Controlled by a Lender, such Person shall be deemed to be Controlled by a Lender
if such Lender possesses, directly or indirectly, power to vote 10% or more of
the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"Agent/Arranger Fee Letter" has the meaning specified in Section
2.10(b).
"Agent-Related Persons" means the Administrative Agent or the Security
Trustee (including any successor administrative agent or security trustee),
together with their respective Affiliates (including, in the case of Bank of
America in its capacity as the Administrative Agent, the Arranger), and the
officers, directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
1
<PAGE>
"Aggregate Commitments" has the meaning set forth in the definition of
"Commitment."
"Agreement" means this Credit Agreement.
"Alternative Currency" means each of Euro, Sterling and each other
lawful currency (other than Dollars) that is freely available and freely
transferable and convertible into Dollars and which is approved by all the
Lenders in accordance with Section 1.08.
"Alternative Currency Equivalent" means, at any time, with respect to
any amount denominated in Dollars, the equivalent amount thereof in the
applicable Alternative Currency 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 such Alternative Currency with
Dollars.
"Alternative Currency Sublimit" means an amount equal to the lesser of
the Aggregate Commitments and $25,000,000. The Alternative Currency Sublimit is
part of, and not in addition to, the Aggregate Commitments.
"Applicable Currency" has the meaning specified in Section 3.02.
"Applicable Rate" means the following percentages per annum, based upon
the Leverage Ratio as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b):
<TABLE>
<CAPTION>
Applicable Rate
Eurocurrency
Rate +
Pricing Commitment Letters of Base Rate
Level Leverage Ratio Fee Credit +
-----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 Less than or equal to 0.250% 0.875% 0.000%
1.50:1
2 Less than or equal to 0.300% 1.125% 0.000%
2.00:1 but greater than
1.50:1
3 Less than or equal to 0.350% 1.375% 0.000%
2.50:1 but greater than
2.00:1
4 Greater than 2.50:1 0.400% 1.625% 0.250%
</TABLE>
2
<PAGE>
Any increase or decrease in the Applicable Rate resulting from a change
in the Leverage Ratio shall become effective as of the first day of the month
immediately following the date a Compliance Certificate is delivered pursuant to
Section 6.02(b); provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then Pricing Level 4 shall
apply as of the first day of the month following the due date of such Compliance
Certificate through the date that is three Business Days after the date that
such Compliance Certificate is delivered. The Applicable Rate in effect from the
Closing Date through September 30, 2002 shall be determined based upon Pricing
Level 3.
"Applicable Time" means, with respect to any borrowings and payments in
Alternative Currencies, the local times in the place of settlement for such
Alternative Currencies as may be determined by the Administrative Agent to be
necessary for timely settlement on the relevant date in accordance with normal
banking procedures in the place of payment.
"Arranger" means Banc of America Securities LLC, in its capacity as
sole lead arranger and sole book manager.
"Assignment and Assumption" means an Assignment and Assumption
substantially in the form of Exhibit I.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance
sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2001, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrower and its
Subsidiaries.
"Bank of America" means Bank of America, N.A.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." Such rate is a rate set by Bank of America based
upon various factors including Bank of America's 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 rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"Base Rate Committed Loan" means a Committed Loan that is a Base Rate
Loan.
3
<PAGE>
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate. All Base Rate Loans shall be denominated in Dollars.
"Borrower" has the meaning set forth in the introductory paragraph
hereto.
"Borrower Security Agreement" means each of (a) the Security Agreement
made by the Borrower in favor of the Administrative Agent on behalf of the
Lenders, substantially in the form of Exhibit E-1 and (b) any other security
agreement or equivalent document as the Administrative Agent shall deem
appropriate for such purpose pursuant to Section 6.12, and "Borrower Security
Agreements" means all of them.
"Borrower Pledge Agreement" means each of (a) the Pledge Agreement made
by the Borrower in favor of the Administrative Agent on behalf of the Lenders,
substantially in the form of Exhibit G-1 and (b) any other pledge agreement or
equivalent document as the Administrative Agent shall deem appropriate for such
purpose pursuant to Section 6.12, and "Borrower Pledge Agreements" means all of
them.
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing, as
the context may require.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office with respect
to Obligations denominated in Dollars is located and (a) if such day relates to
any Eurocurrency Rate Loan denominated in a currency other than Euro, means any
such day on which dealings in deposits in the relevant currency are conducted by
and between banks in the London or other applicable offshore interbank market
for such currency or (b) if such day relates to any Eurocurrency Rate Loan
denominated in Euro, means a TARGET Day.
"Capital Stock" shall mean (i) in the case of a corporation, capital
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of capital stock, (iii) in the case of a partnership, partnership
interests (whether general or limited), (iv) in the case of a limited liability
company, membership interests and (v) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
"Cash" means money, currency or a credit balance in any demand or
Deposit Account.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, Cash pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the L/C Issuer (which
documents are hereby consented to by the Lenders). Derivatives of such term
shall have corresponding meaning. The Borrower hereby grants the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, a Lien on all such
Cash. Cash collateral shall be maintained in blocked, interest bearing Deposit
Accounts at Bank of America and shall be subject to such Lien documentation as
the Administrative Agent shall reasonably request.
4
<PAGE>
"Cash Equivalents" means, as at any date of determination, (a)
marketable securities (i) issued or directly and unconditionally guaranteed as
to interest and principal by the United States Government or (ii) issued by any
agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (b) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof, in each case maturing within one year after such
date and having, at the time of the acquisition thereof, a rating of at least
A-1 from S&P or at least P-1 from Moody's; (c) commercial paper maturing no more
than one year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's; (d) certificates of deposit or bankers' acceptances maturing within one
year after such date and issued or accepted by any Lender or by any commercial
bank organized under the laws of the United States of America or any state
thereof or the District of Columbia that (i) is at least "adequately
capitalized" (as defined in the regulations of its primary Federal banking
regulator) and (ii) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; and (e) shares of any money market mutual fund that (i)
has substantially all of its assets invested continuously in the types of
investments referred to in clauses (a) and (b) above, (ii) has net assets of not
less than $500,000,000, and (iii) has the highest rating obtainable from either
S&P or Moody's.
"Change of Control" means, with respect to any Person, an event or
series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding
any employee benefit plan of such person or its subsidiaries, and any
person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934), directly or indirectly, of 25% or more (and in
the case of Getty Investments LLC of 35% or more) of the equity
securities of such Person entitled to vote for members of the board of
directors or equivalent governing body of such Person on a
fully-diluted basis; or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
such Person cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or equivalent
governing body was approved by individuals referred to in clause (i)
above constituting at the time of such election or nomination at least
a majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to receive the applicable
payment).
5
<PAGE>
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by the Borrower or any Guarantor and
their respective Subsidiaries in or upon which a Lien now or hereafter exists in
favor of the Lenders, or the Administrative Agent or the Security Trustee on
behalf of the Lenders, whether under this Agreement or under any other documents
executed by any such Person and delivered to the Administrative Agent, the
Security Trustee or the Lenders, as the case may be.
"Collateral Account" has the meaning specified in the Collateral
Account Security Agreement.
"Collateral Account Control Agreement" means the Collateral Account
Notification and Acknowledgment (Third Party) among the Borrower, the
Administrative Agent and Banc of America Securities LLC, in its capacity as
securities intermediary, substantially in the form of Exhibit F.
"Collateral Account Security Agreement" means the Security Agreement
made by the Borrower in favor of the Administrative Agent on behalf of the
Lenders, substantially in the form of Exhibit E-3.
"Collateral Documents" means, collectively, (i) each Borrower Security
Agreement, each Guarantor Security Agreement, the Collateral Account Security
Agreement, the Getty Communications Security Agreement, the Collateral Account
Control Agreement, each Borrower Pledge Agreement, each Subsidiary Pledge
Agreement and all other security agreements, control agreements, mortgages,
deeds of trust, patent and trademark assignments, lease assignments, guarantees
and other similar agreements between the Borrower or any Subsidiary or any
Guarantor and the Lenders or the Administrative Agent or the Security Trustee
for the benefit of the Lenders now or hereafter delivered to the Lenders, the
Administrative Agent or the Security Trustee pursuant to or in connection with
the transactions contemplated hereby (including such documents as the
Administrative Agent or the Security Trustee, whichever is relevant, shall deem
appropriate pursuant to Section 6.12, and all financing statements (or
comparable documents now or hereafter filed in accordance with the Uniform
Commercial Code or comparable law) and patent, trademark and copyright filings
against any Loan Party as debtor in favor of the Lenders or the Administrative
Agent or the Security Trustee for the benefit of the Lenders as secured party,
and (ii) any amendments, supplements, modifications, renewals, replacements,
consolidations, substitutions and extensions of any of the foregoing.
"Commitment" means, as to each Lender, its obligation to (a) make
Committed Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing Line
Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 2.01, as
such amount may be reduced or adjusted from time to time in accordance with this
Agreement (collectively, the "Aggregate Commitments").
6
<PAGE>
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type, in the same currency and having the same
Interest Period made by each of the Lenders pursuant to Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Note" means a promissory note made by the Borrower in
favor of a Lender evidencing Committed Loans made by such Lender, substantially
in the form of Exhibit C-1.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
(b) a conversion of Committed Loans from one Type to the other, or (c) a
continuation of Committed Loans as the same Type, pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit H.
"Consolidated Capital Expenditures" means, for any period, all
expenditures of the Borrower and its Subsidiaries during such period determined
on a consolidated basis that, in accordance with GAAP, are or should be included
in "purchase of property and equipment" or similar items reflected in the
consolidated statement of cash flows of the Borrower and its Subsidiaries.
"Consolidated Cash Interest Charges" means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) all
interest, premium payments, utilization fees and nonusage fees (but not
including any arrangement or agency fees or any upfront fees paid to the
Administrative Agent or to the Lenders), charges and related expenses of the
Borrower and its Subsidiaries in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase price of
assets, in each case to the extent treated as interest in accordance with GAAP,
plus (b) the portion of rent expense of the Borrower and its Subsidiaries with
respect to such period under capital leases that is treated as interest in
accordance with GAAP; in each case to the extent paid by the Borrower and its
Subsidiaries in Cash during such period, less (c) any fees included in clause
(a) that are directly related to the termination of the Existing Credit
Agreement up to the amount of $200,000.
"Consolidated Debt Service" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, an amount equal to the sum, without
duplication, of (a) Consolidated Cash Interest Charges plus (b) all scheduled
amortization with respect to (including any payment or prepayment of principal
of, premium, if any, or interest on, or redemption, purchase, retirement,
sinking fund or similar payment) any Indebtedness; in each case payable by the
Borrower and its Subsidiaries during such period.
"Consolidated EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period plus (a) the following to the extent deducted in calculating
such Consolidated Net Income: (i) Consolidated Cash Interest Charges for such
period, (ii) the provision for federal, state, local and foreign income taxes
payable by the Borrower and its Subsidiaries for such period, (iii) the amount
of depreciation and amortization expense deducted in determining such
Consolidated Net Income,
7
<PAGE>
(iv) foreign exchange losses for such period, (v) other extraordinary non-cash
items reducing such Consolidated Net Income for such period and (vi) for the
period ending March, 2002 only, cash expenses for integration, impairment and
losses on abandoned property in an amount not to exceed $4,600,000, minus (b)
the following to the extent added in calculating such Consolidated Net Income:
(i) foreign exchange gains for such period and (ii) other extraordinary non-cash
items increasing Consolidated Net Income for such period.
"Consolidated Funded Indebtedness" means, as of any date of
determination, without duplication, for the Borrower and its Subsidiaries on a
consolidated basis, the sum of (a) the outstanding principal amount of all
obligations, whether current or long-term, for borrowed money (including
Obligations hereunder) and all obligations evidenced by bonds, debentures,
notes, loan agreements or other similar instruments, (b) all purchase money
Indebtedness, (c) all direct obligations arising under letters of credit
(including standby and commercial), bankers' acceptances, bank guaranties,
surety bonds and similar instruments, (d) all obligations in respect of the
deferred purchase price of property or services (other than trade accounts
payable in the ordinary course of business), (e) Attributable Indebtedness in
respect of capital leases and Synthetic Lease Obligations, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the
types specified in clauses (a) through (e) above of Persons other than the
Borrower or any Subsidiary, and (g) all Indebtedness of the types referred to in
clauses (a) through (f) above of any partnership or joint venture (other than a
joint venture that is itself a corporation or limited liability company) in
which the Borrower or a Subsidiary is a general partner or joint venturer,
unless such Indebtedness is expressly made non-recourse to the Borrower or such
Subsidiary.
"Consolidated Net Income" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries (excluding extraordinary gains but including extraordinary losses)
for that period.
"Consolidated Net Worth" means, as of any date of determination, for
the Borrower and its Subsidiaries on a consolidated basis, Shareholders' Equity
of the Borrower and its Subsidiaries on that date.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Extension" means each of the following: (a) a Committed
Borrowing, (b) a borrowing of a Swing Line Loan, and (c) an L/C Credit
Extension.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
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"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, however, that with respect to a Eurocurrency Rate Loan, 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, in each
case to the fullest extent permitted by applicable Laws.
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"Disposition" or "Dispose" means the sale, transfer, license 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.
"Disregarded Foreign Subsidiary" shall mean any Foreign Subsidiary the
separate existence of which is disregarded for United States Federal tax
purposes under Treas. Reg. Section 301.7701-3.
"Dollar" and "$" means lawful money of the United States of America.
"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 any Alternative 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 Alternative Currency.
"Domestic Subsidiary" means any Subsidiary that is organized and
existing under the laws of the United States or any state or commonwealth
thereof or under the laws of the District of Columbia.
"Eligible Assignee" has the meaning specified in Section 10.07(h).
"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, as amended from time to time.
"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 (whether known as the "euro" or otherwise).
"Environmental Laws" means all Laws relating to environmental, health,
safety and land use matters applicable to any property.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any other Loan Party directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation,
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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.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and solely for purposes of provisions
relating to Section 412 of the Code, Sections 414(m) and (o) of the Code).
Notwithstanding the foregoing, "ERISA Affiliate" shall not include Getty
Investments LLC.
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower 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; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) 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 (f) 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 Borrower
or any ERISA Affiliate.
"Euro" and "EUR" and "(euro)" mean the lawful currency of the
Participating Member States introduced in accordance with the EMU Legislation.
"Eurocurrency Rate" means (a) for any Interest Period with respect to
any Eurocurrency Rate Loan other than one referred to in subsection (b) of this
definition:
(i) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
the relevant currency (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, or
(ii) if the rate referenced in the preceding clause (i) does not
appear on such page or service or such page or service shall cease to
be available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in the relevant currency (for delivery on
the first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period,
or
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(iii) if the rates referenced in the preceding clauses (i) and
(ii) are not available, the rate per annum (rounded upward to the next
1/100th of 1%) determined by the Administrative Agent as the rate of
interest at which deposits in the relevant currency for delivery on the
first day of such Interest Period in same day funds in the approximate
amount of the Eurocurrency Rate Loan being made, continued or converted
by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch or London Affiliate
to major banks in the offshore interbank market for such currency at
their request at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period; and
(b) for any Interest Period with respect to any Eurocurrency Rate
Loan advanced by a Lender required to comply with the relevant requirements of
the Bank of England and the Financial Services Authority of the United Kingdom,
the sum of (i) the rate determined in accordance with subsection (a) of this
definition and (ii) the Mandatory Cost Rate for such Interest Period.
"Eurocurrency Rate Committed Loan" means a Committed Loan that bears
interest at a rate based on the Eurocurrency Rate.
"Eurocurrency Rate Loan" means a Eurocurrency Rate Committed Loan.
Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative
Currency. All Loans denominated in an Alternative Currency must be Eurocurrency
Rate Loans.
"Event of Default" has the meaning specified in Section 8.01.
"Event of Loss" means, with respect to any property, any of the
following: (a) any loss, destruction or damage of such property; (b) any pending
or threatened institution of any proceedings for the condemnation or seizure of
such property or for the exercise of any right of eminent domain; or (c) any
actual condemnation, seizure or taking, by exercise of the power of eminent
domain or otherwise, of such property, or confiscation of such property or the
requisition of the use of such property.
"Existing Credit Agreement" means that certain Credit Agreement dated
as of October 25, 1999 among the Borrower, HSBC Investment Bank plc, as agent,
and a syndicate of lenders.
"Existing Letters of Credit" means, together, (a) Irrevocable Standby
Letter of Credit No. 3024893, dated April 11, 2000, issued by Bank of America
for the account of Getty Images, Inc. for the benefit of The Rector Church -
Wardens and Vestrymen of Trinity Church in the City of New York Parish of
Trinity Church in the City of New York Real Estate Department, in the original
amount of $5,796,000 and (b) Irrevocable Standby Letter of Credit No. 3024766,
dated April 5, 2000, issued by Bank of America for the account of Tri-Energy
Productions, Inc. for the benefit of CST Water Garden II, LLC, in the original
amount of $1,000,000, including any amendments, supplements, modifications,
renewals, replacements, consolidations, substitutions and extensions of any of
the foregoing.
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"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards to the next 1/100th of 1%) equal to the weighted average 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 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 charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
"Fee Letters" means, collectively, the Agent/Arranger Fee Letter and
the Lender Fee Letter.
"Fixed Charge Coverage Ratio" means, as of any date of determination,
the ratio of (a) the sum of (i) Consolidated EBITDA for the period of the four
prior fiscal quarters ending on such date less (ii) the Consolidated Capital
Expenditures for such period to (b) the sum of (i) Consolidated Cash Interest
Charges for such period plus (ii) Consolidated Debt Service for such period.
"Foreign Lender" has the meaning specified in Section 10.15(a).
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Getty Communications" means Getty Communications Limited, a private
limited company incorporated under the laws of England and Wales.
"Getty Communications Security Agreement" means the Charge Over Trade
Marks made by Getty Communications in favor of the Security Trustee on behalf of
the Lenders, substantially in the form of Exhibit E-4.
"Getty Communications Pledge Agreement" means the Equitable Mortgage
Over Shares made by Getty Communications in favor of the Security Trustee on
behalf of the Lenders, substantially in the form of Exhibit G-2.
"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 such other
principles as may be approved 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.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
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"Guarantors" means, collectively, Getty Images (Photographers), Inc., a
California corporation, Getty Images (US), Inc., a New York corporation, Getty
Images (Seattle), Inc., Washington corporation, EyeWire, Inc., a Delaware
corporation, Allsport Photography USA Inc., a California corporation, and the
other Persons from time to time a party to any Guaranty Agreement.
"Guarantor Security Agreement" means each of (a) the Security Agreement
made by the Guarantors from time to time a party thereto in favor of the
Administrative Agent on behalf of the Lenders, substantially in the form of
Exhibit E-2 and (b) any other security agreement or equivalent document as the
Administrative Agent shall deem appropriate for such purpose pursuant to Section
6.12, and "Guarantor Security Agreements" means all of them.
"Guaranty Agreement" means each of (a) the Guaranty Agreement made by
the Guarantors from time to time a party thereto in favor of the Administrative
Agent on behalf of the Lenders, substantially in the form of Exhibit D and (b)
any other guaranty agreement or equivalent document as the Administrative Agent
shall deem appropriate for such purpose pursuant to Section 6.12, and "Guaranty
Agreements" means all of them.
"Guaranty Obligation" means, as to any Person, any (a) any obligation,
contingent or otherwise, of such Person guarantying or having the economic
effect of guarantying 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. The amount of any Guaranty Obligation
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
Guaranty Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the
guarantying Person in good faith.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic 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.
"HSBC Bank" means HSBC Bank, plc, a bank incorporated under the laws of
England and Wales.
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"Indebtedness" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations under any Swap Contract in an amount equal
to the Swap Termination Value thereof;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade accounts payable in the
ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by
a Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse;
(f) all obligations in respect of capital leases and Synthetic
Lease Obligations; and
(g) all Guaranty Obligations of such Person in respect of any of
the foregoing.
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 (subject only to customary exceptions
acceptable to the Required Lenders). The amount of any capital lease or
Synthetic Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Intangible Assets" means assets that are considered to be intangible
assets under GAAP, including customer lists, goodwill, computer software,
copyrights, trade names, trade marks, patents, unamortized deferred charges,
unamortized debt discount and capitalized research and development costs.
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<PAGE>
"Intellectual Property" means, as to any Person, all of the following:
(a) all trademarks, service marks, designs, trade names,
corporate names, company names, business names, fictitious business
names, trade styles, trade dress, logos, other source or business
identifiers owned or used by such Person in its business or hereafter
adopted or acquired, all registrations and recordings thereof, and all
registration and recording applications filed in connection therewith,
including registrations and pending applications in the United States
Patent and Trademark Office, any State of the United States or any
similar offices in any other country or any political subdivision
thereof, and all extensions or renewals thereof;
(b) all letters patent of the United States or any other country
or any political subdivision thereof, all registrations and recordings
thereof, and all applications for letters patent of the United States
or the equivalent thereof in any other country owned by such Person,
including registrations, recordings and pending applications in the
United States Patent and Trademark Office or the equivalent thereof in
any similar offices in any other country, and all reissues,
continuations, divisions, continuations-inpart, renewals or extensions
thereof, and the inventions disclosed or claimed therein, including the
right to make, use and/or sell the inventions disclosed or claimed
therein;
(c) all computer programs, computer data bases, other computer
software, trade secrets, trade secret rights, ideas, drawings, designs,
schematics, algorithms, writings, techniques, processes and formulas
owned or used by such Person in its business; and
(d) all copyright rights of such Person in any work subject to
the copyright laws of the United States, any state thereof or any other
country or any political subdivision thereof, whether registered or
unregistered and whether published or unpublished, whether as author,
assignee, transferee or otherwise, and all registrations and
applications for registration of any such copyright in the United
States, any state thereof or any other country or any political
subdivision thereof, including registrations, recordings, supplemental
registrations and pending applications for registration in the United
States Copyright Office or in any similar offices in any other country.
"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; provided, however, 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 (including a Swing Line Loan),
the last Business Day of each March, June, September and December and the
Maturity Date.
"Interest Period" means the period commencing on the date such
Eurocurrency Rate Loan is disbursed or (in the case of any Eurocurrency Rate
Committed Loan) converted to or continued as a Eurocurrency Rate Loan and ending
on the date one, two, three or six months thereafter, as selected by the
Borrower in its Committed Loan Notice; 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, in the case of a Eurocurrency Rate Loan, such Business Day
falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
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<PAGE>
(ii) any Interest Period pertaining to a Eurocurrency Rate Loan
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.
"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 capital stock or other securities of another Person, (b)
a loan, advance or capital contribution to, guaranty 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, 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.
"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.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters
of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all outstanding L/C Borrowings.
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<PAGE>
"Lender" has the meaning specified in the introductory paragraph hereto
and, as the context requires, includes the L/C Issuer and the Swing Line Lender.
"Lender Fee Letter" has the meaning set forth in Section 2.10(c).
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify the Borrower and the Administrative Agent.
"Letter of Credit" means any letter of credit issued hereunder and
shall include the Existing Letters of Credit. A Letter of Credit may be a
commercial letter of credit or a standby letter of credit.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a letter of credit in the form from time to time in
use by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days
prior to the Maturity Date (or, if such day is not a Business Day, the next
preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to the lesser of the
Aggregate Commitments and $15,000,000. The Letter of Credit Sublimit is part of,
and not in addition to, the Aggregate Commitments.
"Leverage Ratio" means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the ratio of (a) the sum
of (i) Consolidated Funded Indebtedness as of such date less (ii) the lesser of
(A) the amount by which the sum of (1) Cash plus (2) Cash Equivalents exceeds
$10,000,000 as of such date or (B) $75,000,000 to (b) Consolidated EBITDA for
the period of the four fiscal quarters ending on such date.
"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 of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic effect
as any of the foregoing and, for the avoidance of doubt, not including any
operating leases).
"Loan" means an extension of credit by a Lender to the Borrower under
Article II in the form of a Committed Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Note, each Fee Letter, each
Request for Credit Extension, each Compliance Certificate, each Collateral
Document, each Guaranty Agreement and each other document, instrument or
agreement from time to time executed by the Borrower or any of its Subsidiaries
or any Responsible Officer thereof and delivered in connection with this
Agreement.
"Loan Parties" means, collectively, the Borrower, Getty Communications
and each Guarantor.
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"Mandatory Cost Rate" means, with respect to any period, a rate per
annum determined in accordance with Schedule 1.01.
"Mandatory Cost Reference Lender" means each of Bank of America and
HSBC Bank.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent) or condition (financial or otherwise) of the Borrower or
the Borrower 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 (i) the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party, or (ii) the perfection or priority of any Lien
granted under any of the Collateral Documents; provided that the Collateral
covered by such Lien has a fair market value, individually or in the aggregate,
in excess of $100,000.
"Material Subsidiary" means, as of any date of determination, any
Subsidiary whose total revenues comprise, or are reasonably expected to
comprise, 5% or more of the total revenues of the Borrower and its Subsidiaries
on a consolidated basis for the then current fiscal year of the Borrower (on a
pro forma basis) or for either of the two most recently ended fiscal years of
the Borrower.
"Maturity Date" means (a) June 30, 2005 or (b) such earlier date upon
which the Aggregate Commitments may be terminated in accordance with the terms
hereof.
"Moody's" means Moody's Investors Service, Inc. or any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower 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.
"Net Proceeds" means, as to any Disposition by a Person, proceeds in
cash, checks or other cash equivalent financial instruments as and when received
by such Person, net of: (a) the direct costs relating to such Disposition
excluding amounts payable to such Person or any Affiliate of such Person, (b)
sale, use or other transaction taxes paid or payable by such Person as a direct
result thereof, (c) income taxes paid or payable by such Person as a direct
result of gains recognized on such Disposition, and (d) amounts required to be
applied to repay principal, interest and prepayment premiums and penalties on
Indebtedness secured by a Lien on the asset which is the subject of such
Disposition. "Net Proceeds" shall also include proceeds paid on account of any
Event of Loss, net of (i) all money actually applied to repair or reconstruct
the damaged property or property affected by the condemnation or taking, (ii)
all of the costs and expenses reasonably incurred in connection with the
collection of such proceeds, award or other payments, and (iii) any amounts
retained by or paid to parties having superior rights to such proceeds, awards
or other payments.
"New Material Subsidiary" has the meaning set forth in Section 6.12(b).
"Non-Guarantor Subsidiary" means any Subsidiary that is not a
Guarantor.
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"Notes" means, collectively, the Committed Loan Notes and the Swing
Line Note.
"Obligations" means, without duplication, (a) all advances to, and
debts, liabilities, obligations, covenants and duties of, any Loan Party arising
under any Loan Document, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising, (b) all liabilities and obligations of the Borrower or any
Subsidiary owing to any Lender or any Affiliate of any Lender and arising under
any Swap Contract permitted by Section 7.03(e), whether absolute or contingent,
due or to become due, now existing or hereafter arising and (c) all advances to,
and debts, liabilities and obligations of, the Borrower or any Subsidiary
arising under the Overdraft Facility Agreements, whether absolute or contingent,
due or to become due, now existing or hereafter arising, and, in each case,
including interest that accrues 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.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutional documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the articles of formation and
operating agreement; 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 and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation with the
applicable Governmental Authority in the jurisdiction of its formation, in each
case as amended from time to time.
"Outstanding Amount" means (i) with respect to Committed Loans and
Swing Line Loans on any date, the aggregate outstanding principal Dollar
Equivalent amount thereof after giving effect to any borrowings and prepayments
or repayments of Committed Loans and Swing Line Loans, as the case may be,
occurring on such date; and (ii) with respect to any L/C Obligations on any
date, the Dollar Equivalent amount of such L/C Obligations on such date after
giving effect to any L/C Credit Extension occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements of outstanding unpaid drawings under
any Letters of Credit or any reductions in the maximum amount available for
drawing under Letters of Credit taking effect on such date.
"Overdraft Facility Agreements" means, collectively, (i) that certain
letter agreement dated as of October 2, 2001 among HSBC Bank, the Borrower and
the Subsidiaries a party thereto (including the General Terms and Conditions
attached thereto) and that certain Deed of Guarantee (Composite Joint & Several
Guarantee) dated February 6, 2001 given by the Borrower and the Subsidiaries a
party thereto and (ii) any amendments, supplements, modifications, renewals,
replacements, consolidations, substitutions and extensions of any of the
foregoing.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the Federal Funds Rate and (b) with respect to any
amount denominated in an Alternative Currency, the rate of interest per annum at
which overnight deposits in the applicable Alternative Currency, 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 Bank of
America located in the applicable interbank market for such currency to major
banks in such interbank market.
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"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"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 Borrower or
any ERISA Affiliate or to which the Borrower 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.
"Permitted Acquisition" means any non-hostile acquisition, whether by
purchase, merger or otherwise, of all or substantially all of the assets of, or
more than 50% of the voting Capital Stock of, or a business line or a division
of, any Person; provided that:
(i) all Persons, assets, business lines or divisions acquired
shall be in the type of business permitted to be engaged in by the
Borrower and its Subsidiaries pursuant to Section 7.09 or such other
lines of business as may be consented to by Requisite Lenders;
(ii) no Default or Event of Default shall then exist or would
exist after giving effect to such acquisition;
(iii) as of the closing of any acquisition, such acquisition
shall have been approved by the board of directors or equivalent
governing body of the Person to be acquired or from which such assets,
business line or division is to be acquired;
(iv) not less than 15 Business Days prior to the consummation
of any acquisition for cash consideration (including assumed
liabilities, earnout payments and any other deferred payment) in excess
of $10,000,000, the Borrower shall have delivered to the Administrative
Agent a written description of the Person, assets, business line or
division to be acquired and its operations together with a copy of the
related purchase agreement, which related purchase agreement shall be
in execution form if available and in the most recent draft form if an
execution form has not been finalized; provided, however the Borrower
shall deliver to the Administrative Agent an execution form of related
purchase agreement as soon as such agreement has been finalized for
execution by the parties thereto;
(v) the Borrower shall demonstrate to the reasonable
satisfaction of the Administrative Agent that, after giving effect to
such acquisition, the Borrower will be in pro forma compliance with all
of the terms and provisions of the financial covenants set forth in
Section 7.13;
(vi) if such acquisition is structured as a merger, the
Borrower (or if such merger is with any Subsidiary, then such
Subsidiary) shall be the surviving Person after giving effect to such
merger; and
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(vii) if the total cash consideration (including assumed
liabilities, earnout payments and any other deferred payment) paid for
all of the Persons, assets, business lines or divisions acquired
exceeds $15,000,000, the Required Lenders shall have approved such
acquisition.
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture, Governmental Authority or other legal entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"Pro Rata Share" means, with respect to each Lender, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments set forth
opposite the name of such Lender on Schedule 2.01, as such share may be adjusted
as contemplated herein.
"Register" has the meaning set forth in Section 10.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders
whose Voting Percentages aggregate more than 50%.
"Responsible Officer" means the chief executive officer, chief
financial officer, treasurer or assistant treasurer 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 (a) any dividend or other distribution
(whether in cash, securities or other property) with respect to any capital
stock or other equity interest of the Borrower 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 of any option, warrant or other right to acquire any such capital stock or
other equity interest and (b) any principal payment made in respect of any
Subordinated Debt.
"Revaluation Date" means each of the following: (a) each date of a
Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency,
(b) each date of a continuation of a Eurocurrency Rate Loan denominated in an
Alternative Currency pursuant to Section 2.02; (c) each date of issuance of a
Letter of Credit denominated in an Alternative Currency, (d) each date of an
amendment of any such Letter of Credit having the effect of increasing the
amount thereof, and (e) such additional dates as the Administrative Agent or the
Required Lenders shall specify.
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"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc. or any successor thereto.
"Same Day Funds" means (a) with respect to disbursements and payments
in Dollars, immediately available funds, and (b) with respect to disbursements
and payments in an Alternative Currency, same day or other funds as may be
determined by the Administrative Agent to be customary in the place of
disbursement or payment for the settlement of international banking transactions
in the relevant Alternative Currency.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Security Trustee" means Bank of America in its capacity as security
trustee under any of the Loan Documents, or any successor security trustee.
"Shareholders' Equity" means, as of any date of determination for the
Borrower and its Subsidiaries on a consolidated basis, shareholders' equity as
of that date determined in accordance with GAAP.
"Solvent" means, as to any Person at a particular time, if, at such
time both (a) (i) the then fair saleable value of the property of such Person on
a going concern basis is (A) greater than the total amount of liabilities
(including contingent liabilities) of such Person as they mature in the ordinary
course and (B) not less than the amount that will be required to pay the
probable liabilities on such Person's then existing debts as they become
absolute and matured considering all financing alternatives and potential asset
sales reasonably available to such Person; (ii) such Person's capital is not
unreasonably small in relation to its business or any contemplated or undertaken
transaction; and (iii) such Person does not intend to incur, or believe (nor
should it reasonably believe) that it will incur, debts beyond its ability to
pay such debts as they become due; and (b) such Person is "solvent" within the
meaning given that term and similar terms under applicable laws relating to
fraudulent transfers and conveyances. For purposes of this definition, the
amount of any contingent liability at any time shall be computed as the amount
that, in light of all of the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability in the ordinary course.
"Special Notice Currency" means at any time an Alternative Currency,
other than the currency of Japan or of a country that is a member of the
Organization for Economic Cooperation and Development at such time located in
North America or Europe.
"Spot Rate" for a currency means the rate quoted by Bank of America as
the spot rate for the purchase by Bank of America of such currency with another
currency through its principal foreign exchange trading office at approximately
11:00 a.m., Seattle time, on the date two Business Days prior to the date as of
which the foreign exchange computation is made.
"Sterling" and "(Pounds)" means the lawful currency of the United
Kingdom.
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"Subordinated Debt" means the Indebtedness of the Borrower evidenced by
the 5.0% Convertible Subordinated Notes issued by the Borrower on March 13, 2000
in the aggregate amount of $250,000,000 due 2007.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management 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 Borrower.
"Subsidiary Pledge Agreement" means each of (a) the Getty
Communications Pledge Agreement and (b) any other pledge agreement or equivalent
document as the Administrative Agent or the Security Trustee shall deem
appropriate for such purpose pursuant to Section 6.12, and "Subsidiary Pledge
Agreements" means all of them.
"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.
"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 amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include any Lender).
"Swing Line" means the revolving credit facility made available by the
Swing Line Lender pursuant to Section 2.04.
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"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant
to Section 2.04.
"Swing Line Lender" means Bank of America in its capacity as provider
of Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.04(a).
"Swing Line Note" means a promissory note made by the Borrower in favor
of the Swing Line Lender evidencing Swing Line Loans made by such Lender,
substantially in the form of Exhibit C-2.
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
pursuant to Section 2.04(b), which, if in writing, shall be substantially in
the form of Exhibit B.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$10,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"TARGET Day" means any day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer (TARGET) System (or, if such
clearing system ceases to be operative, such other clearing system (if any)
determined by the Administrative Agent to be a suitable replacement) is
operating.
"Threshold Amount" means $5,000,000.
"Trust Property" means all the assets, rights, powers, authorities and
discretions at any time subject to or expressed to be subject to the security
from time to time constituted by or arising pursuant to the Loan Documents to
which the Security Trustee is a party pursuant to this Agreement or given under
or pursuant to such Loan Documents including all income and other sums at any
time received or receivable by the Security Trustee in respect thereto.
"Type" means with respect to a Committed Loan, its character as a Base
Rate Loan or a Eurocurrency Rate Loan.
"United States" and "U.S." each means the United States of America.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, determined in accordance
with the assumptions used for funding the Pension Plan pursuant to Section 412
of the Code for the applicable plan year, over the current value of that Pension
Plan's assets.
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"Unreimbursed Amount" has the meaning set forth in Section
2.03(c)(1).
"Voting Percentage" means, as to any Lender, (a) at any time when the
Aggregate Commitments are in effect, such Lender's Pro Rata Share and (b) at any
time after the termination of the Aggregate Commitments, the percentage (carried
out to the ninth decimal place) which (i) the sum of (A) the Outstanding Amount
of such Lender's Committed Loans, plus (B) such Lender's Pro Rata Share of the
Outstanding Amount of L/C Obligations, plus (C) such Lender's Pro Rata Share of
the Outstanding Amount of Swing Line Loans, then comprises of (ii) the
Outstanding Amount of all Loans and L/C Obligations; provided, however, that if
any Lender has failed to fund any portion of the Committed Loans, participations
in L/C Obligations or participations in Swing Line Loans required to be funded
by it hereunder, such Lender's Voting Percentage shall be deemed to be zero, and
the respective Pro Rata Shares and Voting Percentages of the other Lenders shall
be recomputed for purposes of this definition and the definition of "Required
Lenders" without regard to such Lender's Commitment or the outstanding amount of
its Committed Loans, L/C Advances and funded participations in Swing Line Loans,
as the case may be.
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 meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof," and "hereunder" and
words of similar import when used in any Loan Document shall refer to such Loan
Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) 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."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms. (a) 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.
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(b) 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 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.
1.04 Rounding. Any financial ratios required to be maintained by the
Borrower 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 References to Agreements and Laws. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan Document; and
(b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.
1.06 Letter of Credit Amounts. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of Credit or the
Letter of Credit Application therefor, whether or not such maximum face amount
is in effect at such time.
1.07 Exchange Rates; Currency Equivalents.
(a) The Administrative Agent shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit
Extensions and Outstanding Amounts denominated in Alternative Currencies. 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 Loan Parties hereunder or calculating financial
covenants hereunder or except as otherwise provided herein, the applicable
amount of any currency for purposes of the Loan Documents shall be such Dollar
Equivalent amount as so determined by the Administrative Agent, which
determination shall be conclusive in the absence of manifest error.
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(b) Wherever in this Agreement in connection with a Borrowing,
conversion, continuation or prepayment of a Loan or the issuance of a Letter of
Credit, an amount, such as a required minimum or multiple amount, is expressed
in Dollars, but such Borrowing, Loan or Letter of Credit is denominated in an
Alternative Currency, such amount shall be the relevant Alternative Currency
Equivalent of such Dollar amount (rounded to the nearest 1,000 units of such
Alternative Currency), as determined by the Administrative Agent, which
determination shall be conclusive in the absence of manifest error.
1.08 Additional Alternative Currencies. The Borrower may from time to
time request that Committed Loans be made in a currency other than those
specifically listed in the definition of "Alternative Currency;" provided that
such requested currency otherwise meets the requirements set forth in such
definition. Any such request shall be made to the Administrative Agent (which
shall promptly notify each Lender thereof) not later than 11:00 a.m., Seattle
time, 15 Business Days prior to the date of the desired Credit Extension. Each
Lender shall notify the Administrative Agent, not later than 11:00 a.m., Seattle
time, ten Business Days after receipt of such request whether it consents, in
its sole discretion, to making Committed Loans in such requested currency. Any
failure by a Lender to respond to such request within the time period specified
in the preceding sentence shall be deemed to be a refusal by such Lender to make
Committed Loans in such requested currency. If all the Lenders consent to making
Committed Loans in such requested currency, the Administrative Agent shall so
notify the Borrower and such currency shall thereupon be deemed for all purposes
to be an Alternative Currency hereunder.
1.09 Exchange Rates; Currency Equivalents.
(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.
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ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a "Committed
Loan") to the Borrower in Dollars or in one or more Alternative Currencies from
time to time on any Business Day during the period from the Closing Date to the
Maturity Date, in an aggregate amount not to exceed at any time outstanding the
amount of such Lender's Commitment; provided, however, that after giving effect
to any Committed Borrowing, the Dollar Equivalent of (i) the aggregate
Outstanding Amount of all Loans and L/C Obligations shall not exceed the
Aggregate Commitments, (ii) the aggregate Outstanding Amount of the Committed
Loans of any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount
of all L/C Obligations, plus such Lender's Pro Rata Share of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender's Commitment, and
(iii) the aggregate Outstanding Amount of all Loans and L/C Obligations
denominated in Alternative Currencies shall not exceed the Alternative Currency
Sublimit. Within the limits of each Lender's Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section
2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Committed
Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided
herein.
2.02 Borrowings, Conversions and Continuations of Committed Loans.
(a) Each Committed Borrowing, each conversion of Committed Loans from
one Type to the other, and each continuation of Committed Loans as the same Type
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., Seattle time, (i) three Business
Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurocurrency Rate Committed Loans denominated in Dollars or of
any conversion of Eurocurrency Rate Committed Loans denominated in Dollars to
Base Rate Committed Loans, (ii) four Business Days (or five Business Days in the
case of a Special Notice Currency) prior to the requested date of any Borrowing
or continuation of Eurocurrency Rate Committed Loans denominated in Alternative
Currencies, and (iii) on the requested date of any Borrowing of Base Rate
Committed Loans. Each such telephonic notice must be confirmed promptly by
delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower.
Each Committed Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans in Dollars shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Each Committed Borrowing of,
conversion to or continuation of Eurocurrency Rate Committed Loans in
Alternative Currencies shall be in a minimum principal Dollar Equivalent amount
of or approximating $5,000,000. Each Committed Borrowing of or conversion to
Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
Committed Borrowing, a conversion of Committed Loans from one Type to the other,
or a continuation of Committed Loans as the same Type, (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 Committed Loans to be borrowed,
converted or continued, (iv) the Type of Committed Loans to be borrowed or to
which existing Committed Loans are to be converted, (v) if applicable, the
duration of the Interest Period with respect thereto, and (vi) the currency of
the Committed Loans to be borrowed; provided, however, that if as of the date of
any Committed Loan Notice requesting a Committed Borrowing, there are L/C
Borrowings outstanding, the Borrower shall be deemed to have requested that a
portion of the requested Committed Loans in a principal amount equal to the
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outstanding principal amount of such L/C Borrowings be denominated in Dollars.
If the Borrower fails to specify a currency in a Committed Loan Notice
requesting a Borrowing, then the Committed Loans so requested shall be made in
Dollars. If the Borrower fails to specify a Type of Committed Loan in a
Committed Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Committed Loans
shall be made or continued as, or converted to, Base Rate Loans; provided,
however, that in the case of a failure to timely request a continuation of
Committed Loans denominated in an Alternative Currency, such Loans shall be
continued as Eurocurrency Rate Loans in their original currency with an Interest
Period of one month. Any automatic conversion to Base Rate Loans and any
continuation of Eurocurrency Rate Loans provided for in the preceding sentence
shall be effective as of the last day of the Interest Period then in effect with
respect to the applicable Eurocurrency Rate Committed Loans. If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate
Committed Loans in any such Committed Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one
month. No Committed Loan may be converted into or continued as a Committed 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 Committed Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its Pro Rata Share of
the applicable Committed 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 or
continuation of Committed Loans denominated in a currency other than Dollars, in
each case as described in subsection (a) above. In the case of a Committed
Borrowing, each Lender shall make the amount of its Committed 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., Seattle time, in the case
of any Committed Loan denominated in Dollars, and not later than the Applicable
Time specified by the Administrative Agent in the case of any Committed Loan in
an Alternative Currency, in each case on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions
set forth in Section 4.02 (and, if such Borrowing is the initial Credit
Extension, Section 4.01), the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the
Administrative Agent by crediting the account of the Borrower on the books of
Bank of America with the amount of such funds; provided, however, that if, on
the date of the Committed Borrowing in Dollars there are Swing Line Loans or L/C
Borrowings outstanding, then the proceeds of such Borrowing shall be applied,
first, to the payment in full of any such L/C Borrowings, second, to the payment
in full of any such Swing Line Loans, and third, to the Borrower as provided
above.
(c) Except as otherwise provided herein, a Eurocurrency Rate Committed
Loan may be continued or converted only on the last day of the Interest Period
for such Eurocurrency Rate Committed Loan. During the existence of a Default or
Event of Default, no Committed Loans may be requested as, converted to or
continued as Eurocurrency Rate Committed Loans without the consent of the
Required Lenders, and the Required Lenders may demand that (i) any or all of the
then outstanding Eurocurrency Rate Committed Loans denominated in Dollars be
converted immediately to Base Rate Committed Loans and (ii) any or all of the
then outstanding Eurocurrency Rate Committed Loans denominated in an Alternative
Currency be prepaid on the last day of the then current Interest Period with
respect thereto.
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(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Eurocurrency Rate Committed Loan
upon determination of such interest rate. The determination of the Eurocurrency
Rate by the Administrative Agent shall be conclusive in the absence of manifest
error. The Administrative Agent shall notify the Borrower and the Lenders of any
change in Bank of America's prime rate used in determining the Base Rate
promptly following the public announcement of such change if any Base Rate Loans
are then outstanding.
(e) After giving effect to all Committed Borrowings, all conversions of
Committed Loans from one Type to the other, and all continuations of Committed
Loans as the same Type, there shall not be more than ten Interest Periods in
effect with respect to Committed Loans.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the other Lenders
set forth in this Section 2.03, (1) from time to time on any Business
Day during the period from the Closing Date until the Letter of Credit
Expiration Date, to issue Letters of Credit denominated in Dollars or
in one or more Alternative Currencies for the account of the Borrower,
and to amend or renew Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drafts under the
Letters of Credit; and (B) the Lenders severally agree to participate
in Letters of Credit issued for the account of the Borrower; provided
that the L/C Issuer shall not be obligated to make any L/C Credit
Extension with respect to any Letter of Credit, and no Lender shall be
obligated to participate in, any Letter of Credit if as of the date of
such L/C Credit Extension, the Dollar Equivalent of (w) the Outstanding
Amount of all L/C Obligations and all Loans would exceed the Aggregate
Commitments, (x) the aggregate Outstanding Amount of the Committed
Loans of any Lender, plus such Lender's Pro Rata Share of the
Outstanding Amount of all L/C Obligations, plus such Lender's Pro Rata
Share of the Outstanding Amount of all Swing Line Loans would exceed
such Lender's Commitment, (y) the Outstanding Amount of the L/C
Obligations would exceed the Letter of Credit Sublimit, or (z) the
aggregate Outstanding Amount of all L/C Obligations and all Loans
denominated in Alternative Currencies would exceed the Alternative
Currency Sublimit. Within the foregoing limits, and subject to the
terms and conditions hereof, the Borrower's ability to obtain Letters
of Credit shall be fully revolving, and accordingly the Borrower may,
during the foregoing period, obtain Letters of Credit to replace
Letters of Credit that have expired or that have been drawn upon and
reimbursed. All Existing Letters of Credit shall be deemed to have been
issued pursuant hereto, and from and after the Closing Date shall be
subject to and governed by the terms and conditions hereof.
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(ii) The L/C Issuer shall be under no obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit;
(B) any Law applicable to the L/C Issuer or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the L/C Issuer shall (1)
prohibit, or request that the L/C Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular,
(2) impose upon the L/C Issuer with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which the L/C
Issuer is not otherwise compensated hereunder) not in effect on the
Closing Date, or (3) impose upon the L/C Issuer any unreimbursed loss,
cost or expense which was not applicable on the Closing Date and which
the L/C Issuer in good faith deems material to it, unless, in the case
of clauses (1) and (2), the Borrower shall agree to compensate the L/C
Issuer for and hold the L/C Issuer harmless from any loss, cost or
expense incurred by it as a result of such Law or request or directive
from such Governmental Authority pursuant to the terms of such
documents as the Administrative Agent shall deem appropriate for such
purpose;
(C) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last renewal, unless the Required Lenders
have approved such expiry date;
(D) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date; or
(E) such Letter of Credit is in a face amount less than the
Dollar Equivalent of $25,000.
(iii) The L/C Issuer shall be under no obligation to amend any Letter
of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(iv) The L/C Issuer shall be under no obligation to issue or amend
any Letter of Credit if the L/C Issuer has received written notice from any
Lender, the Administrative Agent or any Loan Party, on or prior to the
Business Day prior to the requested date of issuance or amendment of such
Letter of Credit, that one or more applicable conditions contained in
Article IV shall not then be satisfied.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Borrower delivered to the L/C Issuer (with
a copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
the Borrower. Such L/C Application must be received by the
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L/C Issuer and the Administrative Agent not later than 11:00 a.m., Seattle
time, at least two Business Days (or such later date |
