Credit Agreement - Getty Images Inc., HSBC Investment Bank plc and HSBC Bank plc
THIS CREDIT AGREEMENT is dated 25th October, 1999 between:
(1) GETTY IMAGES, INC. a company incorporated under the laws of Delaware,
United States of America with its principal office at 701 N. 34th
Street, Suite 400, Seattle, Washington 98103, United States of America
(the "PARENT");
(2) THE COMPANIES listed in Part I of Schedule 1 as borrowers (in this
capacity together with the Parent each an "ORIGINAL BORROWER");
(3) THE COMPANIES listed in Part II of Schedule 1 as guarantors (in this
capacity each an "ORIGINAL GUARANTOR");
(4) HSBC INVESTMENT BANK plc as arranger (in this capacity the "ARRANGER");
(5) THE FINANCIAL INSTITUTIONS listed in Schedule 2 as Banks;
(6) HSBC INVESTMENT BANK plc as facility agent for the Banks (in this
capacity the "FACILITY AGENT");
(7) HSBC INVESTMENT BANK plc as security agent and trustee for the Banks
(in this capacity the "SECURITY AGENT"); and
(8) HSBC BANK plc as overdraft bank (in this capacity the
"OVERDRAFT BANK").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement terms defined above or in Clause 20 (Financial
Covenants) have the same meaning when used in this Agreement and:
"ACCOUNTING DATE" means each 31st March, 30th June, 30th September and
31st December, save as any such date may be adjusted with the agreement
of the Facility Agent to avoid an Accounting Date falling on a day
which is not a Business Day and/or to ensure that all Accounting Dates
fall on the same day of the week.
"ACCOUNTING PERIOD" in relation to any person means any period of
approximately one month, three months or one year for which Accounts of
such person are required to be prepared ending, in the case of each
three months and each one year period, on an Accounting Date.
"ACCOUNTS" means at any time the latest audited or unaudited, as the
case may be, monthly, quarterly, or annual consolidated accounts of the
Group and any other accounts (whether consolidated or unconsolidated)
of any member of the Group in each case delivered or required to be
delivered to the Facility Agent pursuant to this Agreement, as the
context requires.
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"ACQUIRED ASSETS" means the shares to be acquired by the Parent and/or
such directly or indirectly wholly owned subsidiary as the Parent may
designate and notify to the Facility Agent pursuant to the terms of the
Acquisition Agreements and all other rights, assets and liabilities
(tangible and intangible, present and future, actual and contingent),
acquired or assumed to be acquired by the Parent and/or such directly
or indirectly wholly owned subsidiary as the Parent may designate (and
notify to the Facility Agent) pursuant to the Acquisition Agreements.
"ACQUISITION" means the acquisition of any interest in the share
capital (or equivalent) or in the business or undertaking of any
company or other person other than the Parent (including, without
limitation, any partnership or joint venture).
"ACQUISITION AGREEMENTS" means the Stock Purchase Agreement and all
transfers and other instruments entered into pursuant thereto.
"ACQUISITION COSTS" means all fees, costs and expenses incurred by the
Parent and/or such directly or indirectly wholly owned subsidiary as
the Parent may designate and notify to the Facility Agent in connection
with the negotiation, preparation, execution, registration and
performance of the Acquisition Agreements.
"ADDITIONAL BORROWER" means a member of the Group which becomes a
Borrower in accordance with Clause 17.1 (Additional Borrowers).
"ADDITIONAL GUARANTOR" means a member of the Group which becomes a
Guarantor in accordance with Clause 17.2 (Additional Guarantors).
"ADVANCE" means the principal amount of each borrowing under this
Agreement from the Tranche A Commitments (a "TRANCHE A ADVANCE") or the
principle amount thereof outstanding from time to time.
"AFFILIATE" in relation to any person, means a Subsidiary or a Holding
Company of that person and any other Subsidiary of a Holding Company of
that person.
"AGENT" means the Facility Agent or the Security Agent, as the context
requires.
"AGENT'S SPOT RATE OF EXCHANGE" with respect to any Optional Currency
on any day, means the spot rate of exchange as determined by the
Facility Agent for the purchase of the appropriate amount of such
Optional Currency with Dollars in the London Foreign Exchange Market in
the ordinary course of business at or about 10.00 a.m. on the day in
question.
"ANNIVERSARY" means an anniversary of the Signing Date.
"APPLICABLE ACCOUNTING PRINCIPLES" means (i) in respect of any Accounts
or projections of the Parent or of the Group as a whole delivered under
this Agreement, the accounting principles and practices generally
accepted as at the date hereof in the United States of America, and
(ii) in respect of any other Accounts or projections, the accounting
principles and practices generally accepted as at the date hereof in
the country in which the company or Holding Company concerned is
incorporated.
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"APPLICABLE MARGIN" means at any time, the percentage rate per annum
determined at such time to be the applicable margin in accordance with
Clause 8.5 (Applicable Margin and commitment fee)
"AUDITORS" means PricewaterhouseCoopers or such other firm of
independent public accountants of international standing which is
agreed between the Parent and the Facility Agent, to audit the annual
Accounts of the Parent.
"AVAILABLE FACILITY AMOUNT" means the amount of the Total Commitment
less the aggregate amount of the Original Dollar Amounts of the then
outstanding Advances, at such time taking into account any Advances
scheduled to be made, repaid or prepaid assuming that the same occurs
when due.
"AVAILABILITY PERIOD" means the period from the date of this Agreement
to close of business in London on the Final Maturity Date (both dates
included).
"BANK" means each bank, trust, fund or other financial institution
whose name is set out in Schedule 2 or to which rights and/or
obligations under this Agreement are assigned or transferred pursuant
to Clause 28.2 (Transfers by Banks) or which assumes rights and
obligations pursuant to a Novation Certificate provided that upon (i)
termination in full of all the Commitments of any such bank, trust,
fund or financial institution (and for these purposes the Commitment of
any Bank which assigns, transfers or novates all of its rights and/or
obligations in accordance with clauses 28.2 (Transfers by Banks) and
28.3 (Procedure for Novation) shall be deemed to have been terminated
in full), and (ii) irrevocable payment in full of all amounts which may
be or become payable to such bank, trust, fund or financial institution
in any and all capacities under the Finance Documents, such bank,
trust, fund or financial institution shall not be regarded as being a
Bank for the purposes of determining whether any provision of any of
the Finance Documents requiring consultation with or the consent or
approval of or instructions from the Banks or the Majority Banks has
been complied with.
"BASE FINANCIAL STATEMENTS" means:
(a) the audited consolidated accounts dated as at and for the year
ended 31st December, 1998, and unaudited consolidated
management accounts for the period of 6 months to 30th June,
1999, of The Image Bank Inc. and its Subsidiaries; and
(b) the unaudited consolidated accounts dated as at and for the
year ending 31st December, 1998, and unaudited consolidated
management accounts for the period of 6 months to 30th June,
1999, for The Image Bank France S.A. and its Subsidiaries.
"BORROWER" means an Original Borrower and any Additional Borrower.
"BORROWER ACCESSION AGREEMENT" means a letter substantially in the form
of Part II of Schedule 5 with such amendments as the Facility Agent may
approve or reasonably require.
"BORROWINGS" means (calculated without any double counting) any
indebtedness (including any interest and other charges relating
thereto) in respect of:
(a) moneys borrowed or raised and debit balances at banks;
<PAGE> 4
(b) any debenture, bond, bill, note, loan stock or other security;
(c) any acceptance or documentary credit;
(d) receivables sold or discounted (otherwise than on a
non-recourse basis);
(e) the acquisition cost of any asset or service to the extent
payable before or after the time of acquisition or possession
by the party liable where the advance or deferred payment (i)
is arranged primarily as a method of raising finance or
financing the acquisition of that asset or (ii) is normal in
the trade concerned and the advance is paid more than 180 days
before, or the deferred payment is paid more than 180 days
after, the due date of acquisition or possession of such
asset;
(f) finance leases and hire purchase and other arrangements
treated as finance leases in accordance with the Applicable
Accounting Principles;
(g) currency or interest rate swap, cap, collar or hedging
arrangements or financial futures transactions;
(h) any other transaction having the commercial effect of a
borrowing (whether involving money or commodities); or
(i) any guarantee, indemnity, letter of credit or similar
assurance against financial loss of any person in respect of
any indebtedness falling within paragraphs (a) to (h)
inclusive and any legally binding agreement to maintain the
solvency of any person whether by investing in, lending to or
purchasing any assets of such person to the extent that the
same are treated as borrowings in accordance with Applicable
Accounting Principles,
provided that for the purposes of the calculation of Consolidated Total
Borrowings (as defined in Clause 20.1 (Financial Definitions)) items
falling within paragraph (g) shall be excluded, and for the purposes of
Clause 21.1(d) (Cross-default) items falling within paragraph (g) shall
only be included to the extent of the net amount owing to any
counterparty under any such transaction (to the extent that the
underlying contract provides for net payments).
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
banks and foreign exchange markets are open for business in London and:
(a) (i) if a payment or other transaction in Dollars is
required, in New York; or
(ii) if a payment or other transaction involving an
Optional Currency (other than euros) is required, in
the principal financial centre of the country of that
Optional Currency; or
(b) if a payment or other transaction involving euros is required,
a day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer system (TARGET) is operating (or,
if such clearing system ceases to be operative, such other
<PAGE> 5
clearing system (if any) determined by the Facility Agent to
be a suitable replacement).
"CAPITAL EXPENDITURE" means any expenditure which is treated as capital
expenditure in the audited consolidated Accounts of the Group in
accordance with the Applicable Accounting Principles.
"CASH EQUIVALENT INVESTMENTS" means:
(a) debt securities (denominated in Dollars, Sterling or another
Optional Currency) issued or guaranteed by the government of
the country of the currency concerned having not more than 6
months to final maturity and which are not convertible into
any other form of security;
(b) debt securities (denominated in Dollars, Sterling or another
Optional Currency) which have not more than 60 days to final
maturity, are not convertible into any other form of security,
are rated at least P1 (Moody's Investors Services Inc.) or A-1
(Standard & Poor's Corporation) and are not issued or
guaranteed by any member of the Group; or
(c) such other securities (if any) as are approved as such in
writing by the Facility Agent.
"CHIEF EXECUTIVE OFFICER" means the chief executive officer of the
Parent from time to time.
"CHIEF FINANCIAL OFFICER" means the chief financial officer of the
Parent from time to time.
"CLOSING DATE" means the date on which the TIB Acquisition completes in
accordance with Section 2.5 of the Stock Purchase Agreement.
"COMMITMENT" means in relation to a Bank, its Tranche A Commitment as
reduced or increased from time to time pursuant to any Novation
Certificate or other transfer under Clause 28.2 (Transfers by Banks) to
which such Bank is party, and to the extent not otherwise cancelled,
reduced or terminated under this Agreement.
"DANGEROUS SUBSTANCE" means any radioactive emissions, noise and any
natural or artificial substance (in whatever form) the generation,
transportation, storage, treatment, use or disposal of which (whether
alone or in combination with any other substance) gives rise to a risk
of causing harm to man or any other living organism or damaging the
Environment or public health or welfare, including (without limitation)
any controlled, special, hazardous, toxic, radioactive or dangerous
waste.
"DEFAULT" means an Event of Default or an event which, with the giving
of notice, lapse of time or fulfilment of any other applicable
condition stated in any Finance Document or combination of the
foregoing would constitute an Event of Default, provided that any such
event which requires the satisfaction of a condition as to materiality
before it becomes an Event of Default shall not be a Default until that
condition is satisfied.
"DOLLARS" and "U.S.$" means the lawful currency for the time being of
the United States of America.
<PAGE> 6
"DOLLAR EQUIVALENT" in relation to all amounts expressed or denominated
in an Optional Currency, means the equivalent thereof in Dollars
converted at the Agent's Spot Rate of Exchange on the date of the
relevant calculation (and, if used in relation to an amount expressed
or denominated in Dollars, such amount).
"DRAWDOWN DATE" in relation to each Advance, means the date specified
as such in the relevant Request or on and after the making of such
Advance pursuant to such Request, the date on which it was made.
"EMU" means Economic and Monetary Union as contemplated by the Treaty.
"EMU LEGISLATION" means legislative measures of the European Council
for the introduction of, changeover to, or operation of, a single or
unified European currency.
"ENCUMBRANCE" means any mortgage, pledge, lien, charge, assignment for
the purpose of providing security, hypothecation, right in security,
security interest or trust arrangement for the purpose of providing
security, and any other security agreement or other arrangement having
the effect of providing security (including, without limitation, the
deposit of monies or property with a person with the primary intention
of affording such person a right of set-off or lien).
"ENVIRONMENT" means all, or any of, the following media, the air
(including, without limitation, the air within buildings and the air
within other natural or man-made structures above or below ground),
water (including, without limitation, ground and surface water) and
land (including, without limitation, surface and sub-surface soil).
"ENVIRONMENTAL CLAIM" means any claim by any person:
(a) in respect of any loss or liability suffered or incurred by
that person as a result of or in connection with any violation
of Environmental Law; or
(b) that arises as a result of or in connection with Environmental
Contamination and that could give rise to any remedy or
penalty (whether interim or final) that may be enforced or
assessed by private or public legal action or administrative
order or proceedings.
"ENVIRONMENTAL CONTAMINATION" means each of the following and their
consequences:
(a) any release, discharge, emission, leakage or spillage of any
Dangerous Substance at or from any site owned, occupied or
used by any member of the Group into any part of the
Environment; or
(b) any accident, fire, explosion or sudden event at any site
owned, occupied or used by any member of the Group which is
directly or indirectly caused by or attributable to any
Dangerous Substance; or
(c) any other pollution of the Environment.
"ENVIRONMENTAL LAW" means all laws (including, without limitation,
common law), regulations, directives, codes of practice, circulars,
guidance notices and the like having legal
<PAGE> 7
effect concerning the protection of human health, the Environment, the
conditions of the work place or the generation, transportation,
storage, treatment or disposal of Dangerous Substances.
"ENVIRONMENTAL LICENCE" means any permit, licence, authorisation,
consent or other approval required by any Environmental Law.
"ERISA" means the United States Employee Retirement Income Security Act
of 1974 as amended from time to time, or any successor statute thereto
and any regulations promulgated thereunder.
"ERISA AFFILIATE" means each person (as defined in Section 3(9) of
ERISA), whether or not incorporated, which is under common control or
would be considered a single employer with any Obligor domiciled in the
United States within the meaning of Section 414(b), (c), (m) or (o) of
the IRC and regulations promulgated under those sections or within the
meaning of Section 4001(b) of ERISA.
"ERISA EVENT" means (i) a Reportable Event; (ii) the failure to meet
the minimum funding standard of Section 412 of the IRC with respect to
any Plan (whether or not waived in accordance with Section 412(d) of
the IRC) or the failure to make by its due date a required instalment
under Section 412(m) of the IRC with respect to any Plan or the failure
to make any required contribution to a Multiemployer Plan; (iii) the
provision by the administrator of any Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a
distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by any U.S. Obligor or any of their respective ERISA
Affiliates from any Plan with two or more contributing sponsors or the
termination of any such Plan resulting in material liability pursuant
to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of
proceedings to terminate any Plan, or the occurrence of any event or
condition which constitutes grounds under ERISA for the termination of,
or the appointment of a trustee to administer, any Plan; (vi) the
imposition of material liability on any U.S. Obligor or any of their
respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of
ERISA or by reason of the application of Section 4212(c) of ERISA;
(vii) the withdrawal of any U.S. Obligor or any of the respective ERISA
Affiliates in a complete or partial withdrawal (within the meaning of
Section 4203 and 4205 of ERISA) from any Multiemployer Plan if there is
any potential material liability therefor, or the receipt by any U.S.
Obligor or any of their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganisation or insolvency pursuant
to Section 4241 or 4245 or ERISA, or that it intends to terminate or
has terminated under Section 4041A or 4042 of ERISA with respect to
which any US Obligor would have material liability; (viii) the
occurrence of an act or omission which could give rise to the
imposition on any U.S. Obligor or any of their respective ERISA
Affiliates of material fines, penalties, taxes or related charges under
Chapter 43 of the IRS or under Section 409, 502(c), (i) or (l), or 4071
of ERISA in respect of any Plan, (ix) the assertion of a material claim
(other than routine claims for benefits) against any Plan other than a
Multiemployer Plan or the assets thereof, or against any U.S. Obligor
or any of their respective ERISA Affiliates in connection with any
Plan; (x) receipt from the Internal Revenue Service of notice of the
failure of any Plan (or any other employee benefit plan intended to be
qualified under Section 401(a) of the IRC) to qualify under Section
401(a) of the IRC, or the failure of any trust forming part of any Plan
to qualify for exemption from taxation under Section 501(a) of the IRC;
or (xi) the imposition of a lien pursuant to Section 401(a)(29) or
412(n) of the IRC or pursuant to ERISA with respect to any Plan.
<PAGE> 8
"EURO" means the single currency introduced on 1st January, 1999 as
contemplated by the Treaty.
"EURO-DOLLAR RESERVE PERCENTAGE" means, for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed
by the Board of Governors of the Federal Reserve System of the U.S.A.
(or any successor), for determining the maximum reserve requirement for
a member bank of the Federal Reserve System in New York City with
deposits exceeding five billion Dollars in respect of "Eurocurrency
liabilities" as specified in Regulation D (or in respect of any other
category of extensions of credit or other assets which includes loans
by a non-United States office of any bank to United States residents).
"EURO UNIT" means a unit of the euro as defined in EMU legislation.
"EVENT OF DEFAULT" means an event specified as such in Clause 21.1
(Events of Default).
"EXCLUDED INTELLECTUAL PROPERTY" means any trade names, trade marks and
service marks (whether registered or not and including all applications
for the same) which include the name or mark "GETTY", "GETTY
COMMUNICATIONS" or "GETTY IMAGES", or a design consisting of the letter
"G" in a circle and including any future trade names, trade marks and
service marks incorporating "GETTY", "GETTY COMMUNICATIONS" or "GETTY
IMAGES" or the aforementioned design.
"EXECUTIVE" means each of Jonathan Klein, Mark Getty and Christopher
Roling or their respective replacements from time to time.
"EXECUTIVE OFFICER" means either of the Chief Executive Officer, the
Executive Chairman or the Chief Financial Officer.
"EXISTING FACILITIES" the Existing Revolving Credit Facility and
Existing Overdraft Facility.
"EXISTING REVOLVING CREDIT FACILITY" means the U.S.$20 million
revolving Credit Facility made available by HSBC Bank plc to the Parent
pursuant to a loan agreement dated 12th April, 1999 (as amended on 23rd
August, 1999).
"EXISTING OVERDRAFT FACILITY" means the (pound)2 million overdraft and
forward foreign exchange contracts line of (pound)5 million facility
made available by HSBC Bank plc to, inter alios, Getty U.K. pursuant to
a facility letter dated 7th January, 1999.
"EXISTING OVERDRAFT FACILITY AGREEMENT" means the facility letter dated
7th January, 1999 pursuant to which the Existing Overdraft Facility was
made available to, inter alios, Getty UK.
"FACILITY" means the facility to draw Tranche A Advances referred to in
Clause 2.1 (Facilities).
"FACILITY OFFICE" in relation to any Bank, means the office specified
as such in Schedule 2 or in the Novation Certificate by which such Bank
becomes a party hereto or such other office
<PAGE> 9
notified by such Bank to the Facility Agent by not less than 5 Business
Days' notice as the office through which it will perform all or any of
its obligations under this Agreement.
"FEE LETTER" means the letter referred to in Clauses 23.1 (Arrangement
fee) and 23.3 (Agency fees).
"FINAL MATURITY DATE" means 25th October, 2002 being the date of the
third Anniversary.
"FINANCE DOCUMENTS" means this Agreement, the Fee Letter, the Novation
Certificates, the Borrower Accession Agreements, the Guarantor
Accession Agreements, the Security Documents, and any other document
designated as such by the Facility Agent, which term for the purposes
of the definition of "Security Documents" (including all references to
Finance Documents wheresoever used in the Security Documents) and
Clauses 1.2(iv) Constructions, 1.2(b) (Construction), 16 (Guarantee),
18.1(x) (Senior Indebtedness/Designated Senior Indebtedness), 19.12
(Third Party Guarantees), 19.20(c) (Environmental matters), 19.25
(Compliance with laws), 19.31 (UCC filings), 22 (the Agent and the
Arranger) and 37 (Senior Indebtedness/Designated Senior Indebtedness)
shall also include the Existing Overdraft Facility Agreement and any
Hedging Document. For the avoidance of doubt, the Facility Agent will
not designate the Existing Overdraft Facility Agreement or any Hedging
Document a "Finance Document" in any other context than as provided
herein, without the consent of the Obligors' Agent.
"FINANCE PARTY" means the Arranger, each Bank, the Facility Agent and
the Security Agent (together the "FINANCE PARTIES"), which term for the
purposes of Clauses 16 (Guarantee), 22 (The Agents and the Arranger)
and 24.2 (Enforcement Costs) shall include the Overdraft Bank and any
Hedging Bank
"FINANCIAL FORECASTS" means the document of the same title in the
agreed form.
"GETTY U.K." means Getty Communications Limited, a company incorporated
in England with registered number 3005770.
"GROUP" means the Parent and its Subsidiaries.
"GUARANTOR" means an Original Guarantor and any Additional Guarantor.
"GUARANTOR ACCESSION AGREEMENT" means a deed substantially in the form
of Part III of Schedule 5 with such amendments as the Facility Agent
may approve or reasonably require.
"HEDGING BANK" means any Bank in its capacity as the provider of
hedging facilities for the hedging of exposures arising pursuant to
this Agreement.
"HEDGING DOCUMENTS" means all currency swap, interest rate swap and/or
interest cap and/or other hedging agreements entered into or to be
entered into by any Obligor with a Hedging Bank for the hedging of
exposures arising pursuant to the terms of this Agreement, in each case
as, and including, any instrument pursuant to which the same are
novated, varied, supplemented or amended from time to time.
"HOLDING COMPANY" means an entity of which another person is a
Subsidiary.
<PAGE> 10
"INFORMATION MEMORANDUM" means the information memorandum to be
prepared by the Parent and delivered to the Arranger and the Banks in
connection with this Agreement and general syndication of the
Facilities.
"INTELLECTUAL PROPERTY RIGHTS" means all know-how, patents, trademarks,
service marks, designs, business names, topographical or similar
rights, copyrights and other intellectual property rights and any
interests (including by way of licence) in any of the foregoing (in
each case whether registered or not and including all applications for
the same) of any member of the Group.
"INTEREST" means:
(a) interest and amounts in the nature of interest accrued;
(b) prepayment penalties or premiums incurred in repaying or
prepaying any Borrowings;
(c) discount fees and acceptance fees payable or deducted in
respect of any Borrowings (including all fees payable in
connection with any letter of credit or guarantee); and
(d) any other costs, expenses and deductions of the like effect
(excluding the interest element of finance leases (unless and
until the amount of any such leases permitted by Clause
19.11(b) (Leases) is increased, with the consent of the
Majority Banks, above U.S.$3,000,000)) and any net payment
(or, if appropriate in the context, receipt) under any
interest rate hedging agreement or instrument taking into
account any premiums payable for the same and the interest
element of any net payment (plus or minus any accrued exchange
gains or losses) under any currency hedging instrument or
arrangement,
and "INTEREST" includes commitment and non-utilisation fees (including,
without limitation, those payable hereunder) but excludes agent's and
front-end, management, arrangement and participation fees with respect
to any Borrowings (including, without limitation, those payable
hereunder).
"IRC" means the United States Internal Revenue Code of 1986, as amended
from time to time, or any successor statute and any regulations
promulgated thereunder.
"LIBOR" in relation to any Advance or unpaid sum:
(a) the rate per annum of the offered quotation for deposits in
the currency of the relevant Advance or unpaid sum for a
period equal or comparable to the required period which
appears on Telerate Page 3750 or Telerate Page 3740 (as
appropriate) at or about 11.00 a.m. on the applicable Rate
Fixing Day; or
(b) if the rate cannot be determined under paragraph (a) above,
the rate, expressed as a percentage determined by the Facility
Agent to be the arithmetic mean (rounded upwards, if
necessary, to the nearest five decimal places) of the
respective rates notified to the Facility Agent by each of the
Reference Banks quoting (provided that at least two Reference
Banks are quoting) as the rate at which it is offering
deposits
<PAGE> 11
in the required currency and for the required period to prime
banks in the London interbank market at or about 11.00 a.m. on
the Rate Fixing Day for such period,
and, for the purposes of this definition:
(i) "REQUIRED PERIOD" means the Term of an Advance or such period
in respect of which LIBOR falls to be determined in relation
to any unpaid sum; and
(ii) "TELERATE PAGE 3750" means the display designated as Page
3750, and "TELERATE PAGE 3740" means the display designated as
Page 3740, in each case on the Telerate Service (or such other
pages as may replace page 3750 or Page 3740 on that service or
such other service as may be nominated by the British Bankers'
Association (including the Reuters Screen) as the information
vendor for the purposes of displaying British Bankers'
Association Interest Settlement Rates for deposits in the
currency concerned).
"MAJORITY BANKS" means, at any time, Banks the aggregate of whose
Commitments:
(a) represent by value at least 66 2/3 per cent. of the Total
Commitments; or
(b) if the Total Commitments have been reduced to zero,
represented by value at least 66 2/3 per cent. of the Total
Commitments immediately before the reduction.
"MANDATORY COST" means in relation to an Advance the cost (if any) of
compliance with the cash ratio deposit requirements of the Bank of
England and the amount (if any) of fees payable to the Financial
Services Authority during its term, determined in accordance with
Schedule 7.
"MATERIAL ADVERSE EFFECT" means any effect which is, or is reasonably
likely:
(a) to be materially adverse to (i) the ability of any Obligor to
perform its payment and other material obligations under any
of the Finance Documents, or (ii) the ability of the Parent to
comply with its obligations under Clause 20 (Financial
Covenants), or (iii) the business, assets or financial
condition of the Parent, or the Group taken as a whole; and/or
(b) to result in any of the Finance Documents not being legal,
valid and binding on, and enforceable substantially in
accordance with its terms against, any party to that Finance
Document and/or (in the case of Security Documents) not
providing to the Security Agent for itself and on behalf of
the Banks, perfected, enforceable security over the assets
purported to be covered by that Security Document, in a manner
and to an extent reasonably considered by the Majority Banks
to be materially adverse to their interests under the Finance
Documents.
"MATERIAL SUBSIDIARY" means:
(a) each Borrower (other than the Parent); and
(b) each member of the Group:
<PAGE> 12
(i) whose unconsolidated pre-tax profits in any annual
Accounting Period are equal to 5 per cent. of
Consolidated EBITDA (as defined in Clause 20.2
(Financial Covenants) of the Group; or
(ii) whose book value of gross assets is 5 per cent. or
more of the consolidated gross assets of the Group,
all as shown (in the case of any Subsidiary) in its most
recent quarterly and annual Accounts and (in the case of the
Group) in the most recent annual consolidated Accounts of the
Group. For the purposes of this definition:
(1) in the case of a company which itself has
Subsidiaries, the calculation shall be made by using
the actual consolidated pre-tax profits or gross
assets, as the case may be, of it and its
Subsidiaries and in accordance with the Applicable
Accounting Principles;
(2) each Subsidiary named in Schedule 8 or, if later, in
the latest annual list of Material Subsidiaries
provided by the Parent to the Facility Agent pursuant
to Clause 19.2(d)(i)(B) (Financial Information) shall
be deemed to be a Material Subsidiary until either
the next list of Material Subsidiaries is delivered
to the Agent or it is shown to the Facility Agent's
reasonable satisfaction not to be a Material
Subsidiary determined in accordance with the most
recent quarterly or annual statements referred to
above; and
(3) any member of the Group which is not a Material
Subsidiary and to which any Material Subsidiary
sells, transfers or otherwise disposes of any fixed
assets in any transaction or series of transactions
(related or not) which results in the transferee
company meeting the test referred to in (b)(ii) above
(calculated by reference to the last set of accounts
of the relevant transferee company referred to in
paragraph (b)(1) above but taking into account such
transfer) shall be deemed to be a Material Subsidiary
(and the Material Subsidiary which sells, transfers
or otherwise disposes of such assets shall be deemed
to continue to be a Material Subsidiary) unless and
until it is shown (in each such case) to the Facility
Agent's reasonable satisfaction not to be a Material
Subsidiary under paragraph (b) above.
"MATURITY DATE" means the last day of the Term of an Advance.
"MULTIEMPLOYER PLAN" means a Plan which is a multiemployer plan as
defined in section 3(37) or 4001(a)(3) of ERISA.
"NATIONAL CURRENCY UNIT" means the unit of currency (other than a euro
unit) of a Participating Member State.
"NON-EQUITY CONSIDERATION" means any consideration other than the issue
after the date of this Agreement of equity share capital of the Parent
or the cash proceeds of such an issue of equity share capital.
"NON-OBLIGOR" means each member of the Group which is not an Obligor.
<PAGE> 13
"NOVATION CERTIFICATE" has the meaning given to it in Clause 28.3
(Procedure for novation).
"OBLIGOR" means any Borrower and any Guarantor.
"OBLIGORS' AGENT" means the Parent appointed to act on behalf of each
Obligor pursuant to Clause 2.4 (Obligors' Agent).
"OPTIONAL CURRENCY" means Sterling, euros or other freely available
European currencies (excluding national currency units).
"ORIGINAL DOLLAR AMOUNT", in relation to any amount means:
(a) (if denominated in Dollars) the principal amount which is, or
is to be, outstanding or drawn; or
(b) (if denominated in an Optional Currency) the Dollar Equivalent
of the principal amount which is, or is to be, outstanding or
drawn calculated, in the case of an Advance, three Business
Days prior to the Drawdown Date for the making of that Advance
or, in the case of any other amount, three Business Days prior
to the date on which the calculation is made.
"PARTICIPATING MEMBER STATE" means a member state of the European
Communities that adopts, or has adopted the euro as its currency in
accordance with EMU legislation.
"PARTY" means a party to this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERMITTED ENCUMBRANCES" means:
(a) Encumbrances constituted or evidenced by the Security
Documents;
(b) Encumbrances expressly permitted in writing by the Facility
Agent (acting on the instructions of the Majority Banks),
provided that the principal amount of the indebtedness secured
by such Encumbrances shall not at any time be increased beyond
the amount expressly so permitted;
(c) Encumbrances arising by operation of law in the ordinary
course of business and not as a result of any default or
omission on the part of any member of the Group;
(d) Encumbrances over goods and documents of title to goods
arising in the ordinary course of letter of credit
transactions entered into in the ordinary course of trade;
(e) Encumbrances over credit balances on bank accounts of members
of the Group created in order to facilitate the operation of
such bank accounts and other bank accounts of such members of
the Group with such banks on a net balance basis with credit
balances and debit balances on the various accounts being
netted off for interest purposes or Encumbrances over credit
balances on bank accounts pursuant to
<PAGE> 14
the standard terms and conditions of such bank of general
application to its corporate customers
(f) Encumbrances over assets acquired after the Signing Date and
existing at the date of acquisition but not created in
contemplation of their acquisition, provided that (A) any such
Encumbrances are disclosed in writing to the Banks prior to
acquisition of the relevant assets and (B) the principal
amount secured by any such Encumbrance shall not be increased
beyond the amount secured thereby at the date of such
acquisition and (C) such Encumbrances are released and
discharged within three months of the date of such
acquisition, unless the Majority Banks otherwise consent;
(g) Encumbrances in existence at the Signing Date in favour
of the Adobe Systems Inc created by Eyewire, Inc;
(h) Encumbrances arising pursuant to the terms of the Existing
Facilities provided that all such Encumbrances are discharged
as soon as practicable on or after the date on which all the
respective obligations under each of the Existing Facilities
are discharged;
(i) rights of set-off arising in the normal course of business;
and
(j) Encumbrances not otherwise permitted pursuant to paragraphs
(a)-(i) (inclusive) above together securing indebtedness in an
aggregate principal amount at any time outstanding not
exceeding U.S.$5,000,000 (or its equivalent in other
currencies).
"PLAN" means an "employee pension benefit plan" within the meaning of
Section 3(2) of ERISA which is subject to Title IV of ERISA, Section
302 of ERISA or Section 412 of the IRC.
"PRIMARY SYNDICATION PERIOD" means the period ending on the date the
Arranger notifies the Parent that general syndication of the Facilities
is completed.
"PROFORMA ACCOUNTS" means the form of monthly and quarterly
consolidated management Accounts of the Group in the format and with
the headings and level of information agreed by the Parent and the
Facility Agent from time to time (or if not so agreed as reasonably
required by the Facility Agent).
"PROSPECTUS" means the Form S-3 prospectus of the Parent, filed on 29th
September, 1999 in relation to the issue of certain shares of common
stock in the Parent to be quoted on the NASDAQ National Market to be
issued in relation to the TIB Acquisition.
"PURCHASE PRICE" means the consideration of US$183,000,000 less the
US$1,000,000 deposit (together with interest thereon) payable on the
Closing Date in respect of the purchase of the Acquisition Assets.
"QUALIFYING BANK" means a bank as defined in Section 840A of the Income
and Corporation Taxes Act 1988 which is within the charge to United
Kingdom corporation tax as regards interest payable or paid to it under
the Finance Documents and is beneficially entitled to such interest.
<PAGE> 15
"RATE FIXING DAY" means:
(a) the Drawdown Date for an Advance denominated in Sterling; or
(b) the second Business Day before the Drawdown Date for an
Advance denominated in a currency other than Sterling,
or such other day as the Facility Agent, after consultation with the
Parent and the Banks, may designate as market practice in the relevant
interbank market for leading banks to give quotations in the relevant
currency for delivery on the relevant Drawdown Date.
"RATIO PERIOD" has the meaning given to it in Clause 20.2 (Financial
Covenants).
"RECOGNISED BANK" in respect of Advances made available to any
Borrower, means a bank, fund, trust or other financial institution
which is:
(i) (in the case of a Borrower not resident in the United Kingdom
for tax purposes) for the time being lending through an
office, branch, Affiliate or agency in the jurisdiction of
incorporation of the relevant Borrower; or
(ii) (in the case of a Borrower resident in the United Kingdom
for tax purposes) a Qualifying Bank; or
(iii) (if such bank, fund, trust or other financial institution
complies with neither (i) nor (ii) above):
(A) at the time the bank, fund, trust or financial
institution becomes a Party, is incorporated in a
country with which the jurisdiction of incorporation
of such Borrower has an appropriate double taxation
treaty which provides at such time under its terms
for exemption from that jurisdiction's income Tax on
that jurisdiction's source interest for an entity
such as such bank, fund, trust or other financial
institution when acting through the office, branch,
Affiliate or agency through which it is acting; and
(B) prior to the first date after the date on which it
became a party to this Agreement on which any
interest on any of the Advances to such Borrower in
which it has a participation is payable, has made and
filed an appropriate application for exemption (as
contemplated by Clause 11.5 (Double tax treaty
filings)) under such treaty (or would have done so
but for any failure by such Borrower to comply with
its obligations under Clause 11.5 (Double tax treaty
filings)).
"REFERENCE BANKS" subject to Clause 28.4 (Reference Banks), means the
principal London offices of HSBC Bank plc, and any two such other Banks
as may be agreed between the Facility Agent and the Parent.
"REPORTABLE EVENT" shall have the meaning set forth in Section 4043(b)
of ERISA for which the PBGC has not waived the notice requirement of
Section 4043(a) of ERISA.
<PAGE> 16
"REQUEST" means a request made by the Obligors' Agent on behalf of a
Borrower for an Advance, substantially in the form of Schedule 4.
"REQUESTED AMOUNT" means the amount requested for drawing by a Borrower
in a duly completed Request.
"RESERVATIONS" means the qualifications set out in the legal opinions
listed or referred to in Schedule 3.
"RESERVE ASSET COSTS" means:
(a) in relation to any Advance or overdue amount for any period,
the Mandatory Cost applicable to that Advance or overdue
amount;
(b) without double counting in relation to any Advance or overdue
amount for any period denominated in Dollars to a U.S. Obligor
made available by a United States incorporated Bank or a
United States branch of a non-United States incorporated Bank,
the cost, if any, notified by that Bank to the Facility Agent
as the cost to it of complying with Regulation D attributable
to such Advance; and
(c) without double counting in relation to any Advance or overdue
amount for any period, the cost, if any, notified by any Bank
to the Facility Agent as the cost to it of complying with the
reserve asset and other regulatory requirements of the
European Central Bank in relation to that overdue amount or
Advance or any class of Advances of which that Advance forms
part,
but no Bank is entitled to receive an amount under more than one of the
above paragraphs in respect of the same Advance or overdue amount for
the same period unless there is a change in, or introduction of, any
relevant law or regulation after the Signing Date.
"ROLLOVER ADVANCE" means any Tranche A Advance requested under this
Agreement:
(a) in respect of which the Drawdown Date is the last day of the
Term in respect of any outstanding Advance;
(b) which is denominated in the same currency as such outstanding
Advance; and
(c) the amount of which is equal to or less than the amount of
such outstanding Advance.
"SECURITY DOCUMENTS" means the share charges and other security
documents identified in Schedule 6, together with such other security
documents as may be required to be entered into by any Obligor pursuant
to any of the Finance Documents.
"SHARES" means each and any of the shares in the capital of the Parent.
"SIGNING DATE" means the date of this Agreement.
"STERLING" and "(POUND)" means the lawful currency for the time being
of the United Kingdom.
<PAGE> 17
"STOCK PURCHASE AGREEMENT" means the stock purchase agreement dated
20th September, 1999 made between the Parent, Eastman Kodak Company and
Kodak S.A., providing, inter alia, for the purchase by the Parent
and/or such wholly-owned subsidiary as the Parent may designate and
notify to the Facility Agent of the entire issued share capital of The
Image Bank, Inc. and the Image Bank France S.A.
"STRUCTURE MEMORANDUM" means the memorandum and corporate chart in the
form delivered to the Facility Agent on or before the Signing Date.
"SUBORDINATED LOAN NOTES" means the US$75,000,000 4.75 per cent.
Convertible Subordinated Notes due June 2003 issued by the Parent on
20th May, 1998.
"SUBSIDIARY" in relation to any person, means any entity which is
controlled directly or indirectly by that person or of whose dividends
or distributions that person is entitled to receive more than 50 per
cent. and any entity (whether or not so controlled) treated as a
subsidiary in the latest Accounts of that person from time to time
(provided that such entity or that person's interest in such entity has
not been disposed of after the date of such Accounts in accordance with
the Finance Documents), and "CONTROL" for this purpose means the direct
or indirect ownership of the majority of the voting share capital of
such entity or the right or ability to direct management to comply with
the type of material restrictions and obligations contemplated in this
Agreement or to determine the composition of a majority of the board of
directors (or like board) of such entity, in each case whether by
virtue of ownership of share capital, contract or otherwise.
"TARGET GROUP" means The Image Bank, Inc and The Image Bank France S.A.
together with their respective Subsidiaries.
"TAXES" means all taxes, imposts, duties, levies, charges, deductions
and withholdings in the nature or on account of tax, together with all
interest thereon and penalties with respect thereto (and "TAX" shall be
construed accordingly).
"TERM" means the period selected by the Obligors' Agent in a Request
for which an Advance is to be outstanding.
"THE IMAGE BANK INC." means The Image Bank Inc., a corporation
incorporated under the laws of New York.
"THE IMAGE BANK FRANCE, S.A." means The Image Bank France S.A., a
corporation incorporated under the laws of France.
"TIB ACQUISITION" means the acquisition of the Acquired Assets by the
Parent and/or such directly or indirectly wholly owned Subsidiary as
the Parent may designate (and notify to the Facility Agent) pursuant to
the Acquisition Agreements.
"TOTAL COMMITMENTS" means the aggregate of all Banks' Tranche A
Commitments from time to time under the Facility.
"TRANCHE A" means the revolving credit facility referred to in Clause
2.1(a) (Facilities).
<PAGE> 18
"TRANCHE A COMMITMENT" means the amount appearing and designated as
such against the Bank's name in Column 1 of Schedule 2 or in the
Novation Certificate or other document by which it became a party to or
acquired rights under this Agreement, to the extent not transferred,
cancelled or reduced under or in accordance with this Agreement.
"TRANSACTION DOCUMENTS" means the Finance Documents and the Acquisition
Agreements.
"TREATY" means, the Treaty Establishing the European Community being
the Treaty of Rome of 25th March, 1957, as amended by the Single
European Act 1986 and the Maastricht Treaty (which was signed at
Maastricht on 7th February, 1992 and came into force on 1st November,
1993), as amended from time to time.
"TREATY COUNTRY" means each state described as a participating Member
State in any EMU legislation, whether in the first wave or
subsequently.
"U.K." or "UNITED KINGDOM" means the United Kingdom of Great Britain
and Northern Ireland.
"U.K. GROUP" means Getty U.K. and its Subsidiaries from time to time.
"U.S. BORROWER" means each Borrower incorporated in the United States
of America (or any of its states or territories or any political or
legal sub-division thereof).
"U.S. OBLIGOR" means each Obligor incorporated in the United States of
America (or any of its states or territories or any political or legal
sub-division thereof).
"U.S. CODE" means the United States Internal Revenue Code of 1986 as
amended.
"U.S. PERSON" means a person who is a citizen or resident of the United
States of America and any corporation or other entity created or
organised in or under the laws of the United States of America or any
political or legal sub-division thereof.
"UNITED STATES" means the United States of America.
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference
to:
(i) "ASSETS" includes properties, revenues and rights of every
description present, future and contingent;
an "AUTHORISATION" includes an authorisation, consent,
approval, resolution, licence, exemption, filing, registration
and notarisation;
a "MONTH" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day
in the next calendar month, except that, if such period starts
on the last day in a calendar month or there is no numerically
corresponding day in the month in which that period ends, that
period shall end on the last Business Day in such later
calendar month;
<PAGE> 19
a "REGULATION" includes any regulation, rule, order, official
directive, request or guideline (whether or not having the
force of law) of any governmental body, agency, department or
regulatory, self-regulatory or other authority or
organisation;
(ii) a provision of a law is a reference to that provision as
amended or re-enacted;
(iii) a Clause or a Schedule is, unless otherwise specified, a
reference to a clause of or a schedule to this Agreement;
(iv) a Finance Document or any other document is a reference to
that Finance Document or that other document as amended,
novated or supplemented from time to time (including, where
relevant by any Borrower Accession Agreement, Guarantor
Accession Agreement and/or Novation Certificate);
(v) a time of day is a reference to London time;
(vi) words importing the singular shall include the plural and vice
versa;
(vii) a document in an "AGREED FORM", is a reference to such
document either in a form previously agreed in writing by or
on behalf of the Parent and the Facility Agent or in form and
substance satisfactory to the Banks;
(viii) a Party or other person includes, unless otherwise provided in
this Agreement, such Party's or person's permitted successors,
assigns, transferees or substitutes; and
(ix) the "EQUIVALENT IN OTHER CURRENCIES" or like terms shall,
unless otherwise agreed or the context otherwise requires,
mean the Dollar Equivalent of the relevant amount in other
currencies.
(b) Unless the contrary intention appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in
this Agreement.
(c) The index to and the headings in this Agreement are for
convenience only and are to be ignored in construing this Agreement.
2. THE FACILITIES
2.1 FACILITIES
Subject to the terms of this Agreement, the Banks agree to make
available, during the Availability Period a revolving credit facility
under which the Banks shall, when requested by the Obligors' Agent
pursuant to a Request, make to the Parent or any Additional Borrower,
Tranche A Advances in Dollars or an Optional Currency up to an
aggregate amount not exceeding the Tranche A Commitments.
2.2 OVERALL FACILITY LIMIT
(a) The aggregate Original Dollar Amount of all outstanding Advances
shall not exceed at any time the Total Commitments.
<PAGE> 20
(b) No Bank is obliged to participate in an Advance if it would cause the
Original Dollar Amount of its participations in the Advances to exceed
its Commitment.
2.3 NATURE OF A FINANCE PARTY'S RIGHTS AND OBLIGATIONS
(a) The obligations of a Finance Party under the Finance Documents are
several. Failure of a Finance Party to carry out those obligations does
not relieve any other Party of its obligations under the Finance
Documents. No Finance Party is responsible for the obligations of any
other Finance Party under the Finance Documents.
(b) The rights of a Finance Party under the Finance Documents are divided
rights. A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
2.4 OBLIGORS' AGENT
(a) Each Obligor (other than the Parent) irrevocably authorises the Parent
to act on its behalf as its agent in relation to the Finance Documents
and irrevocably authorises (i) the Parent on its behalf to supply all
information concerning itself, its financial condition and otherwise to
the relevant persons contemplated under this Agreement and to give all
notices and instructions (including, in the case of a Borrower,
Requests) to execute on its behalf any Finance Document and to enter
into any agreement in connection with the Finance Documents
notwithstanding that the same may affect such Obligor, without further
reference to or the consent of such Obligor, and (ii) each Finance
Party to give any notice, demand or other communication to be given to
or served on such Obligor pursuant to the Finance Documents to the
Parent on its behalf, and, in each such case, such Obligor will be
bound thereby as though such Obligor itself had given such notice and
instructions, executed such agreement or received any such notice,
demand or other communications.
(b) Every act, omission, agreement, undertaking, settlement, waiver, notice
or other communication given or made by the Obligors' Agent under this
Agreement, or in connection with this Agreement (whether or not known
to any other Obligor and whether occurring before or after such other
Obligor became an Obligor under this Agreement) shall be binding for
all purposes on all other Obligors as if the other Obligors had
expressly made, given or concurred with the same. In the event of any
conflict between any notices or other communications of the Obligors'
Agent and any other Obligor, those of the Obligors' Agent shall
prevail.
2.5 CHANGE OF CURRENCY
(a) If more than one currency or currency unit are at the same time
recognised by the central bank of any country as the lawful currency of
that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or
currency unit of that country designated by the Facility
Agent; and
(ii) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the Facility Agent
acting reasonably.
<PAGE> 21
(b) If a change in any currency of a country occurs, this Agreement will be
amended to the extent the Facility Agent, acting in good faith,
specifies to be necessary, to reflect the change in currency and to put
the Banks in the same position, so far as possible, that they would
have been in if no change in currency had occurred.
2.6 EXISTING OVERDRAFT FACILITY
(a) The Finance Parties acknowledge that the Overdraft Bank has
made available the Existing Overdraft Facility to certain
members of the Group consisting of:
(i) a sterling overdraft and/or bills for negotiation
and/or engagements of (pound)2,000,000 (on a net
basis); and
(ii) a forward foreign exchange contracts line of
(pound)5,000,000,
and the Overdraft Bank will be entitled to share in the
security pari passu with the Banks under the Security
Documents pro rata in respect of claims under the Existing
Overdraft Facility within those limits.
(b) Notwithstanding any other provision of any Finance Document
(including but not limited to the Security Documents);
(i) the Overdraft Bank will not have any right to require
the Security Trustee to enforce any security under
the Security Documents unless the Facility Agent has
served notice under Clause 21.2 (Acceleration) on any
Obligor;
(ii) the Overdraft Bank will be entitled to exercise any
rights it may have under the Existing Overdraft
Facility (in priority to the security constituted by
the Security Documents) to net-off credit balances of
members of the Group held by the Overdraft Bank
against outstandings under the Existing Overdraft
Facility without any obligation to account under the
Security Documents, Clause 31 (Pro-rata sharing) or
otherwise to any other Finance Party;
(iii) the Overdraft Bank is entitled to close out foreign
exchange contracts with any Obligor entered into
under paragraph (a)(ii) at any time and net off
payments due to be received under such contracts
against payments to be made in priority to the
security constituted by the Security Documents
without any obligation to account under the Security
Documents, Clause 31 (Pro-rata sharing) or otherwise
to any other Finance Party.
2.7 TRANCHE A COMMITMENT
(a) The Tranche A Commitment of HSBC Bank plc in its capacity as a
Bank as at the Signing Date will be US$50,000,000 (unless it
agrees in writing with the Parent to increase its Tranche A
Commitment up to a specified amount).
(b) If and to the extent other banks or financial institutions
(each a "NEW BANK") are willing to commit to participate in
Tranche A following syndication efforts by the Arranger then,
upon any Novation Certificate signed by a New Bank taking
effect in
<PAGE> 22
relation to Tranche A, the New Bank will be treated as having
taken a transfer from HSBC Bank plc of the Tranche A
Commitment specified in that Novation Certificate as though
HSBC Bank plc had increased its Tranche A Commitment by the
amount such New Bank is willing to so commit immediately prior
to the Novation Certificate taking effect.
(c) Commitment fee in respect of such undrawn part of the Tranche
A Commitment increased pursuant to this Clause 2.7 will accrue
under Clause 23.2 (Commitment Fee) in relation to:
(i) the Tranche A Commitment of any New Bank, with
effect on and after the effective date of the
relevant Novation Certificate; and
(ii) any Tranche A Commitment which HSBC Bank plc agrees
to as contemplated in paragraph (a) above, with
effect on and after the date it agrees in writing to
accept that increased Tranche A Commitment;
(d) Nothing in this Clause 2.7 will oblige HSBC Bank plc in its
capacity as a Bank to make any Advance under Tranche A which
would result in the principal amount outstanding under Tranche
A being in excess of US$50,000,000 at any time (except to the
extent it has agreed in writing to accept a Tranche A
Commitment in excess of such amount).
3. PURPOSE
(a) The proceeds of each Advance under Tranche A shall be applied in or
towards the general corporate purposes of the Group including, but
without limitation, Acquisitions (but not including the TIB
Acquisition) and working capital provided that US$20,000,000 may only
be borrowed to repay the Existing Revolving Credit Facility in the
amounts and on the dates set out in Schedule 9 (and the Facility Agent
is hereby irrevocably authorised to apply those borrowings in payment
direct to HSBC Bank plc to repay the Existing Revolving Credit Facility
accordingly).
(b) Without affecting the obligations of any Obligor in any way, no Finance
Party is bound to monitor or verify the application of the proceeds of
any Advance.
4. CONDITIONS PRECEDENT
4.1 CONDITIONS PRECEDENT TO DRAWDOWN
(a) Subject to paragraph (b) below, the obligations of each Finance Party
to the Obligors under this Agreement are subject to the conditions
precedent that the Facility Agent shall have received all of the
documents set out in Part I of Schedule 3 in form and substance
satisfactory to the Facility Agent (acting reasonably) and the
representations and warranties in Clause 18 (Representation and
Warranties) are correct as at the Signing Date.
(b) The Finance Parties shall not be obliged to participate in any Tranche
A Advance which would result in the principal amount outstanding under
Tranche A being in excess of US$50,000,000 until the date upon which
the Facility Agent has (i) received all of the documents set out in
Part 1A of Schedule 3 in form and substance satisfactory to the
Facility
<PAGE> 23
Agent (acting reasonably) and (ii) the Tranche A Commitments have been
increased pursuant to the terms of Clause 2.7 (Tranche A Commitment).
4.2 CONDITIONS PRECEDENT TO EACH ADVANCE
The obligations of the Finance Parties to participate in any Advance
are subject to the further conditions precedent that both at the date
of the Request for such Advance (if applicable) and at the Drawdown
Date for the relevant amount:
(a) except in the case of a Rollover Advance, the representations
and warranties in Clause 18 (Representations and warranties)
to be repeated on those dates are correct and will be correct
immediately after the Advance is made by reference to the
facts and circumstances then existing;
(b) except in the case of a Rollover Advance, no Default is
outstanding which has not been waived by the Facility Agent in
accordance with the terms hereof or might result from the
Advance; and
(c) the making of the relevant Advance would not cause Clause
2.2 (Overall facility limit) to be contravened.
5. DRAWDOWN
5.1 RECEIPT OF REQUESTS
A Borrower may draw an Advance if the Facility Agent receives from the
Obligors' Agent, not later than 11.00 a.m. three Business Days before
the proposed Drawdown Date, a Request complying with Clause 5.2
(Completion of Requests).
5.2 COMPLETION OF REQUESTS
Each Request for an Advance will not be regarded as having been duly
completed unless it is duly executed on behalf of the relevant Borrower
by the Obligors' Agent, dated and specifies:
(a) the name of the relevant Borrower;
(b) the Drawdown Date, being a Business Day falling before the
Final Maturity Date;
(c) the amount of the Advance being, an Original Dollar Amount of
not less than U.S.$750,000 (or equivalent) or the then
Available Facility Amount, provided always that no Requested
Amount may exceed the then Available Facility Amount;
(d) the duration of its Term which does not extend beyond the
Final Maturity Date and is for a period of one week, two,
three or four weeks during the Primary Syndication Period and
thereafter one month, two, three or six months (or such other
monthly period as agreed between the Obligors' Agent and the
Facility Agent acting on the instructions of the Majority
Banks);
(e) the currency of the Advance requested (being Dollars or an
Optional Currency in accordance with Clause 9 (Optional
Currencies)); and
<PAGE> 24
(f) payment instructions which comply with Clause 10 (Payments).
Each Request for an Advance must specify one Advance only, but the
Obligors' Agent may, on behalf of the relevant Borrower, subject to the
other terms of this Agreement, deliver more than one Request for
Advances on any one day.
5.3 AMOUNT OF EACH BANK'S PARTICIPATION IN ADVANCE
(a) The Facility Agent shall promptly notify each Bank of the details of
the requested Advance and the amount of its participation in the
Advance.
(b) The amount of a Bank's participation in any Advance will be the
proportion of the Advance which its Commitment bears to the Total
Commitments on the proposed Drawdown Date.
5.4 PAYMENT OF PROCEEDS
Subject to the terms of this Agreement, each Bank shall make its
participation in each Advance available to the Facility Agent for the
relevant Borrower on the relevant Drawdown Date.
6. REPAYMENT
6.1 REPAYMENT OF ADVANCES
(a) Each Borrower shall repay the full amount of each Advance made to it on
its Maturity Date to the Facility Agent for the Banks.
(b) No Advances may be outstanding after the Final Maturity Date.
6.2 NETTING
Without prejudice to each Borrower's obligations to repay the full
amount of each Advance made to it on the due date, on the date that any
Rollover Advance is made the amount to be repaid and the amount to be
drawn down by such Borrower shall be netted off against each other so
that the amount of cash which the relevant Borrower is actually
required to repay or, as the case may be, the amount of cash which the
Banks are actually required to advance to such Borrower, shall be the
net amount.
6.3 RE-BORROWING
Subject to the terms of this Agreement, any amount repaid under Clause
6.1(a) may be re-borrowed.
7. PREPAYMENT AND CANCELLATION
7.1 AUTOMATIC CANCELLATION
The Commitment of each Bank shall be automatically cancelled at close
of business in London on the Final Maturity Date.
<PAGE> 25
7.2 VOLUNTARY PREPAYMENT AND CANCELLATION
(a) The Obligors Agent may, by giving not less than 5 Business Days' prior
written notice (or such shorter period as the Majority Banks agree) to
the Facility Agent, cancel the unutilised portion of the Total
Commitments in whole or in part or prepay any Advance in whole or in
part (but, if in part, in a minimum Original Dollar Amount of
U.S.$750,000).
(b) Any cancellation in part shall reduce the Commitment of each Bank
pro rata.
7.3 ADDITIONAL RIGHT OF PREPAYMENT AND CANCELLATION
(a) If:
(i) any Borrower is required to pay to a Bank any additional
amount under Clause 11 (Taxes);
(ii) any Borrower is required to pay to a Bank any amount under
Clause 13 (Increased costs);
(iii) Clause 9.2 (Revocation of Currency) is applicable; or
(iv) Clause 12 (Market Disruption) is applicable.
then, without prejudice to the obligations of any Obligor under those
Clauses, the Obligors' Agent may, whilst the circumstances giving rise
to the requirement continue, serve a notice of prepayment and
cancellation on that Bank through the Facility Agent.
(b) On the date falling five Business Days after the date of service of the
notice:
(i) to the extent necessary to avoid such payments or
applicability of such Clauses, each Borrower shall prepay that
Bank's participation in all the Advances made by such Bank to
it; and
(ii) the Commitment of that Bank shall be cancelled accordingly.
7.4 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable. The Facility Agent shall notify the Banks promptly of
receipt of any such notice.
(b) All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to Clause 25.2
(General Indemnities), without premium or penalty.
(c) No prepayment of any Advance or cancellation of any Commitment is
permitted except in accordance with the express terms of this
Agreement.
(d) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
<PAGE> 26
8. INTEREST
8.1 INTEREST RATE
The rate of interest applicable to each Advance for its Term is the
rate per annum determined by the Facility Agent to be the aggregate of:
(a) the Applicable Margin;
(b) LIBOR; and
(c) Reserve Asset Costs.
8.2 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on
each Advance for each Term relative thereto shall be paid by the
relevant Borrower on its Maturity Date and also, in the case of an
Advance with a Term of longer than six months, on the dates falling at
six monthly intervals after its Drawdown Date.
8.3 DEFAULT INTEREST
(a) If an Obligor fails to pay any amount payable by it under this
Agreement when due, it shall forthwith on demand by the Facility Agent
from time to time pay interest on the overdue amount from the due date
up to the date of actual payment, as well after as before judgment, at
a rate (the "DEFAULT RATE") determined by the Facility Agent to be two
per cent. (2%) per annum above the higher of:
(i) the rate on the overdue amount under Clause 8.1 (Interest
rate) immediately before the due date (if of principal); and
(ii) the rate of interest which would have been payable if the
overdue amount had, during the period of non-payment,
constituted an Advance in the currency of the overdue amount
for successive Terms of such duration as the Facility Agent
may determine (each a "DESIGNATED PERIOD").
(b) The Default Rate will be determined on each Business Day or on the date
two Business Days prior to the commencement of or on the first day of
the relevant Designated Period, as the Facility Agent shall determine,
and default interest will be compounded at the end of each Designated
Period if not paid.
8.4 NOTIFICATION OF RATES OF INTEREST
(a) The Facility Agent shall promptly notify each relevant Party of the
determination of a rate of interest under this Agreement;
(b) Each determination of a rate of interest by the Facility Agent under
this Agreement shall, in the absence of manifest error, be conclusive
and binding on all Parties.
<PAGE> 27
8.5 APPLICABLE MARGIN AND COMMITMENT FEE
(a) The Applicable Margin will be 1.75 per cent. per annum for the
period from the Signing Date up to and including 30th June, 2000.
(b) After 30th June, 2000 the Applicable Margin will be determined and
adjusted in accordance with paragraph (c) below, to the percentage
rates per annum specified in Column 1 below set opposite the range into
which the Net Debt Ratio (as defined in paragraph (f) below) specified
in Column 2 below falls, as evidenced in any certificate delivered
under Clause 19.2(d) (Financial Information) (an "ADJUSTMENT
CERTIFICATE").
COLUMN 1 COLUMN 2
APPLICABLE NET DEBT RATIO
MARGIN % (RANGE)
1.75 2:75 or more
1.5 Less than 2:75, but not less
than 2.25
1.25 Less than 2.25, but not less
than 2.00
1.00 Less than 2.00
(c) Any adjustment to the Margin pursuant to paragraph (b) above shall not
apply to the Margin with respect to any Advance then outstanding but
shall only apply to Advances the Terms of which start after the date of
delivery of the applicable Adjustment Certificate.
(d) If, in respect of any relevant Accounting Period, an Adjustment
Certificate is not delivered in accordance with Clause 19.2(d)
(Financial Information), the Margin in relation to any future or
outstanding Advance will be 1.75 per cent. per annum on and with effect
from the latest date for delivery of such Adjustment Certificate under
such Clause 19.2(d) (Financial Information). No further adjustment to
the Margin shall be made under this Clause 8.5 until an Adjustment
Certificate is delivered in compliance with Clause 19.2(d) (Financial
Information) in respect of a succeeding Accounting Period.
(e) The commitment fee referred to in Clause 23.2 (Commitment fee) shall be
on each day the lower of 0.675 per cent. per annum or 50 per cent. of
the Margin which would be applicable to an Advance if such Advance were
drawn or rolled over on such day.
(f) In this Clause 8.5 "NET DEBT RATIO" means the ratio of average
Consolidated Total Borrowings to Consolidated EBITDA calculated in
accordance with, and for the periods specified in, Clause 20.2
(Financial Covenants).
(g) Notwithstanding the provisions of paragraphs (b) to (f) above, if an
Event of Default occurs, the Applicable Margin shall, with immediate
effect, be 1.75 per cent. per annum in respect of any future or
outstanding Advance and shall remain at such level for as long as an
Event of Default continues.
<PAGE> 28
9. OPTIONAL CURRENCIES
9.1 SELECTION
(a) The Obligors' Agent, on behalf of the relevant Borrower, shall select
the currency of an Advance in the relevant Request.
(b) The currency of each Advance must be Dollars or an Optional Currency.
(c) The Obligors' Agent, on behalf of the relevant Borrower may not choose
a currency if, as a result, the Advances would be denominated at any
time in more than three currencies.
(d) The Facility Agent shall notify each Bank of the currency and the
Original Dollar Amount of each Advance and the applicable Agent's Spot
Rate of Exchange promptly after they are ascertained.
9.2 REVOCATION OF CURRENCY
If, before 9am on any Rate Fixing Day the Facility Agent receives
notice from a Bank that:
(a) it is impracticable for the Bank to fund its participation in
the relevant Advance in the relevant Optional Currency during
its Term in the ordinary course of business in the London
interbank market; and/or
(b) the use of the proposed Optional Currency is reasonably
likely to contravene any applicable law or regulation,
the Facility Agent shall give notice to the Obligors' Agent and to the
Banks to that effect before 10am on that day. In this event:
(i) the Obligors' Agent and the Banks may agree that the drawdown
will not be made; or
(ii) in the absence of any such agreement that Bank's participation
in the relevant Advance (or, if more than one Bank is
similarly affected, those Banks' participations in the
relevant Advance) shall be treated as a separate Advance
denominated in Dollars during the relevant Term.
10. PAYMENTS
10.1 FUNDS
All payments by the Obligors or any of them or by the Banks or any of
them under the Finance Documents shall be made to the Facility Agent
for the account of the Party entitled. Payments under the Finance
Documents to the Facility Agent shall be made in freely transferable
funds for same day value on the due date at such times and in such
manner as the Facility Agent may specify to the Party concerned as
being customary at the time for the settlement of transactions in the
currency in which the amount concerned is denominated to the account of
the Facility Agent at such bank or office as the Facility Agent shall
designate by at least three Business Days' notice to the Party making
payment.
<PAGE> 29
10.2 DISTRIBUTION
(a) Each payment received by the Facility Agent under the Finance Documents
for another Party shall, subject to paragraphs (b) and (c) below, be
made available by the Facility Agent to that Party by payment (on the
date and in the currency and funds of receipt) to its account with such
bank in the principal financial centre of a country of the relevant
currency as it may notify to the Facility Agent for this purpose by not
less than 10 Business Days' prior notice.
(b) The Facility Agent may, subject to clause 10.6 (Partial payments),
apply any amount received by it for an Obligor in or towards payment of
any amount due from an Obligor under the Finance Documents or in or
towards the purchase of any amount of any currency to be so applied.
(c) Where a sum is to be paid under the Finance Documents to the Facility
Agent for the account of another Party, the Facility Agent is not
obliged to pay that sum to that Party until it has established that it
has actually received that sum. The Facility Agent may, at its sole
discretion, assume that the sum has been paid to it in accordance with
the relevant Finance Document and, in reliance on that assumption, make
available to that Party a corresponding amount. If the sum has not been
made available but the Facility Agent has paid a corresponding amount
to another Party, that Party shall forthwith on demand refund the
corresponding amount to the Facility Agent together with interest on
that amount from the date of payment to the date of receipt, calculated
at a rate determined by the Facility Agent to reflect its cost of
funds.
10.3 CURRENCY
(a) Interest shall be payable in the currency in which the relevant amount
in respect of which it has accrued was denominated during the period of
accrual.
(b) The principal of each Advance shall be repaid or prepaid in the
currency in which it is denominated.
(c) Any amount (other than of principal and/or interest) calculated on or
by reference to or payable in respect of another amount shall be
payable in the currency in which that other amount is denominated at
the time of payment.
(d) Amounts payable in respect of costs, expenses, Taxes and the like
are payable in the currency in which they are incurred.
10.4 SET-OFF AND COUNTERCLAIM
Save as otherwise permitted under Clause 6.2 (Netting), all payments to
be made by an Obligor under any Finance Document shall be made without
set-off or counterclaim.
10.5 NON-BUSINESS DAYS
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
<PAGE> 30
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on the principal at the rate payable
on the original due date.
10.6 PARTIAL PAYMENTS
(a) If the Facility Agent receives a payment insufficient to discharge all
the amounts then due and payable by the Obligors under the Finance
Documents, the Facility Agent shall apply that payment towards the
obligations of the Obligors in the following order:
(i) FIRST, in or towards payment pro rata of any unpaid costs,
fees and expenses of the Facility Agent or the Security Agent
under the Finance Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued fees
due but unpaid under Clause 23 (Fees);
(iii) THIRDLY, in or towards payment pro rata of any accrued
interest due but unpaid under this Agreement;
(iv) FOURTHLY, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and
(v) FIFTHLY, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
(b) The Facility Agent shall, if so directed by the Majority Banks, vary
the order set out in sub-paragraphs (a)(iii) to (v) above.
(c) Paragraphs (a) and (b) above shall override any appropriation made by
an Obligor.
11. TAXES
11.1 GROSS-UP
All payments by an Obligor under the Finance Documents shall be made
without any deduction or withholding and free and clear of and without
deduction or withholding for or on account of any Taxes except to the
extent that the Obligor is required by law to make payment subject to
any Tax. Save as referred to in Clause 11.3 (Recognised Bank), if any
Tax or amounts in respect of Tax must be deducted, or any other
deductions must be made, from any amounts payable or paid by an
Obligor, or paid or payable by the Facility Agent to a Finance Party,
under the Finance Documents, the Obligor shall pay such additional
amounts as may be necessary to ensure that the relevant Finance Party
receives a net amount equal to the full amount which it would have
received had payment not been made subject to Tax or any other
withholding or deduction.
11.2 TAX RECEIPTS
All Taxes required by law to be deducted or withheld by an Obligor from
any amounts paid or payable under the Finance Documents shall be paid
by the relevant Obligor when due and the Obligor shall, within a month
of the payment being made, deliver to the Facility Agent for the
relevant Finance Party evidence satisfactory to that Finance Party
acting reasonably
<PAGE> 31
(including all relevant tax receipts) that the payment has been duly
remitted to the appropriate authority.
11.3 RECOGNISED BANK
(a) If, otherwise than as a result of the introduction of, change in, or
change in the interpretation, administration or application of or
expiry of, any law or regulation (including, without limitation, any
double tax treaty) or any practice or concession of any applicable Tax
authority occurring after the date of this Agreement, a Bank or the
Facility Agent is not or ceases to be a Recognised Bank, no Obligor
shall be liable to pay to that Bank or the Facility Agent under Clause
11.1 (Gross-up) any amount in respect of Taxes levied or imposed in
excess of the amount it would have been obliged to pay if that Bank or
the Facility Agent was a Recognised Bank.
(b) No Obligor is liable to pay to a Bank or the Facility Agent any amount
under Clause 11.1 (Gross-up) in respect of Taxes (not being withholding
taxes) imposed on the overall net income or gains of a Bank or the
Facility Agent by the jurisdiction in which such Bank or the Facility
Agent is organised or in which its principal office is located or on
the overall net income or gains of the Bank's Facility Office by the
jurisdiction in which that Facility Office is located.
(c) Each Bank and the Facility Agent confirms to each Borrower that it is a
Recognised Bank with respect to such Borrower at the time it becomes a
party to this Agreement and shall notify the Parent upon officers of
such Bank or the Facility Agent involved in administering this
Agreement becoming aware that it has ceased to be a Recognised Bank.
11.4 TAX SAVING
(a) If, following the imposition of any Tax on any payment by any Obligor
(or any corresponding payment by the Facility Agent to any Finance
Party under any Finance Document) in consequence of which such Obligor
pays an additional amount under Clause 11.1 (Gross-up), any Finance
Party shall as a result of such payment receive or be granted a credit
against or remission for or deduction or relief from or in respect of
any Tax payable by it which in such Finance Party's sole opinion
(acting in good faith) is both identifiable and quantifiable by it
without requiring such Finance Party or its professional advisers to
expend a material amount of time or incur a material cost in so
identifying or quantifying (any of the foregoing, to the extent so
identifiable and quantifiable, being referred to as a "SAVING"), such
Finance Party shall, to the extent that it can do so without prejudice
to the retention of the relevant saving and subject to such Obligor's
obligation to repay promptly on demand by the Finance Party the amount
to such Finance Party to the extent that the relevant saving is
subsequently disallowed or cancelled, reimburse such Obligor promptly
after receipt of such saving by such Finance Party with such amount as
such Finance Party shall in its sole opinion but in good faith have
concluded to be the amount or value of the relevant saving.
(b) Nothing contained in this Agreement shall interfere with the right of
any Finance Party to arrange its Tax and other affairs in whatever
manner it thinks fit. No Finance Party shall be required to disclose
any confidential information relating to the organisation of its
affairs.
<PAGE> 32
11.5 DOUBLE TAX TREATY FILINGS
Each Finance Party shall, and the Parent shall ensure that each
relevant Borrower (and if a payment falls or is likely to fall to be
made by it, each Guarantor), file all such forms, make all such
applications and take all such other action, (in each case in so far as
it may reasonably be able to file, make or take) pursuant to all
relevant treaties for the avoidance of double taxation in order that
payments by it under the Finance Documents to which such treaties apply
(or would apply were such filings, applications or other action made or
taken) may be made without (or, where complete avoidance is not
possible, with a reduced rate of) withholding tax. Each Finance Party
shall give to each relevant Obligor and each relevant Obligor shall
give to each Finance Party such assistance as the other may reasonably
require in connection with the completion and filing of such forms, the
making of such applications and the taking of such other duties as
aforesaid.
11.6 U.S. TAXATION - DELIVERY OF FORMS AND STATEMENTS
(a) Without prejudice to the generality of Clause 11.5 (Double tax treaty
filings), each Finance Party which is not a U.S. Person and which is
lending to a U.S. Borrower shall deliver (through the Facility Agent)
to the relevant U.S. Borrower on or before the Maturity Date of the
first Advance it makes to such U.S. Borrower, two copies of such duly
completed form or forms as may be required to indicate that such
Finance Party is entitled to receive payments under this Agreement
without deduction, withholding or payment by the U.S. Borrower of any
United States federal Taxes, including, without limitation, either:
(i) two copies of IRS Form 1001 of the Internal Revenue Service of
the United States of America or Form W-8BEN (Certificate of
Foreign Status of Beneficial Owner for United States Tax
Withholding) (relating to an applicable double revenue tax
treaty concluded by the United States of America); or
(ii) two copies of IRS Form 4224 of the Internal Revenue Service of
the United States of America or Form W-8ECI (Certificate of
Foreign Person's Claim for Exemption From Withholding On
Income Effectively Connected with the Conduct of a Trade or
Business in the United States) (relating to income effectively
connected with the conduct of a trade or business in the
United States of America).
Each such Finance Party, subject as otherwise provided in this Clause
11.6(d) below, shall deliver (through the Facility Agent) to each U.S.
Borrower additional duly completed copies of any of the above forms
and/or such additional or successor forms (including Form W-8BEN and
Form W-8ECI) as shall be adopted from time to time by the Internal
Revenue Service of the U.S.A. if it is notified by the U.S. Borrower or
the Internal Revenue Service of the U.S.A. that any previous such form
delivered by it pursuant to this Clause 11.6 has expired or that
Finance Party becomes aware that any such form shall have become
incomplete or inaccurate in any respect unless prior to that delivery
any event occurs which renders the relevant form inapplicable.
(b) Without prejudice to the generality of Clause 11.5 (Double tax treaty
filings), each Finance Party which is a U.S. Person shall deliver
(through the Facility Agent) to each U.S. Obligor a statement signed by
an authorised signatory of the Finance Party to the effect that it is a
U.S. Person and if necessary to avoid United States backup withholding,
a duly completed copy of
<PAGE> 33
Internal Revenue Service Form W-9 (or successor form) establishing that
such Finance Party is not subject to United States backup withholding.
(c) The Facility Agent shall have no responsibility or liability for and no
obligation to check the accuracy or appropriateness of any form or
statement delivered by any Finance Party pursuant to this Clause
11.6(a) or (b) respectively.
(d) If any Finance Party determines, as a result of any introduction of or
change in applicable law, regulation or treaty, or in any official
application or interpretation thereof, that it is unable to submit to
any U.S. Obligor any form or certificate that the Finance Party is
obliged to submit pursuant to Clause 11.6(a) or (b), or that such
Finance Party is required to withdraw or cancel any form or certificate
previously submitted, the Finance Party shall promptly notify the U.S.
Borrowers' Agent of that fact.
11.7 COLLECTING AGENTS RULES
Each Bank represents to the Facility Agent on the date it becomes a
Party as a Bank that, in relation to the Facility, it is:
(a) either:
(i) not resident in the United Kingdom for United Kingdom
tax purposes; or
(ii) a bank as defined in section 840A of the Income and
Corporation Taxes Act 1988 and resident in the United
Kingdom; and
(b) beneficially entitled to the principal and interest payable
by the Facility Agent to it under this Agreement,
(or, if it is not able to make those representations, will ensure that
it assigns, transfers or novates its rights in respect of each Advance
then made (or, if made later, when made) to an entity in respect of
which both representations are correct) and, if it is able to make
those representations on the date it becomes a Bank, shall forthwith
notify the Facility Agent if either representation ceases to be
correct.
12. MARKET DISRUPTION
(a) If, in relation to any Advance:
(i) if no or only one, Reference Bank supplies a rate on the Rate
Fixing Day for the purposes of determining LIBOR or the
Facility Agent otherwise determines that adequate and fair
means do not exist for ascertaining LIBOR; or
(ii) the Facility Agent receives notification from Banks whose
participations in an Advance exceed 50 per cent. (50%) by
value of that Advance that, in their opinion, by reason of
circumstances affecting the London Interbank Eurocurrency
Market:
(A) matching deposits will not be available to them in
the London Interbank Eurocurrency Market in the
ordinary course of business in amounts sufficient to
fund their participations in that Advance for the
relevant Term; or
<PAGE> 34
(B) the cost to them of such matching deposits in the
London Interbank Eurocurrency Market for that Term
would be in excess of LIBOR,
the Facility Agent shall promptly notify the Obligors' Agent and the
Banks of that fact and that this Clause 12 is in operation.
(b) After any notification under paragraph (a) above:
(i) no further Requests may be delivered and no Bank shall be
obliged to participate in the Advance to which such
notification relates, unless such Advance is already
outstanding, until the Facility Agent notifies the Obligors'
Agent that the event specified in the notification no longer
prevails;
(ii) if the Obligors' Agent so requires, within 5 Business Days of
receipt of any such notification, the Obligors' Agent and the
Facility Agent (on behalf of the Banks) shall, in good faith,
enter into negotiations for a period of not more than 30 days
with a view to agreeing a substitute basis (the "SUBSTITUTE
BASIS") for determining the rate of interest and/or funding
applicable to any future Advance;
(iii) any Substitute Basis agreed under sub-paragraph (ii) above
shall be, with the prior consent of all the Banks, binding on
all the Parties; and
(iv) until and unless a Substitute Basis is so agreed, each Bank's
participation in each outstanding Advance to which such
notification related shall bear interest during the current
Term relative thereto at the rate certified by such Bank to be
its cost of funds (from such source as it may reasonably
select) for such Term in relation to such Advance, plus the
Applicable Margin and Reserve Asset Costs.
(c) The Facility Agent, in consultation with the Obligors' Agent shall, on
a monthly basis, review whether or not the circumstances referred to in
Clause 12(a) above still prevail with a view to returning to the normal
interest provisions of this Agreement.
13. INCREASED COSTS
13.1 INCREASED COSTS
(a) Subject to Clause 13.2 (Exceptions), the Parent shall forthwith on
demand by a Finance Party pay to that Finance Party the amount of any
increased cost incurred by it (or any Holding Company of it) as a
result of any introduction of or change in or change in the
interpretation, administration or application of any law, directive or
official regulation (including any law or regulation relating to
taxation, change in currency of a country or reserve asset, special
deposit, cash ratio, liquidity or capital adequacy requirements or any
other form of banking or monetary control) whether or not having the
force of law but, if not, being a directive or official regulation with
which it is the practice of banks in the relevant jurisdiction to
comply or compliance by any Finance Party (or any Holding Company of
such Finance Party) with any such introduction or change.
(b) In this Agreement "INCREASED COST" means:
<PAGE> 35
(i) an additional cost incurred by a Finance Party (or any Holding
Company of it) as a result of it having entered into, or
performing, maintaining or funding its obligations under, any
Finance Document; or
(ii) that portion of an additional cost incurred by a Finance Party
(or any Holding Company of it) in making, funding or
maintaining all or any Advances comprised in a class of
Advances formed by or including the participations in the
Advances made or to be made under this Agreement which is
attributable to it making, funding or maintaining those
participations; or
(iii) a reduction in any amount payable to a Finance Party (or any
Holding Company of it) or the effective return to a Finance
Party (or any Holding Company of it) under any Finance
Document or on its (or such Holding Company's) capital; or
(iv) the amount of any payment made by a Finance Party (or any
Holding Company of it), or the amount of interest or other
return foregone by a Finance Party (or any Holding Company of
it), calculated by reference to any amount received or
receivable by a Finance Party from any other Party under this
Agreement.
(c) The relevant Finance Party shall notify the Parent as promptly as
reasonably practicable upon it becoming aware of circumstances giving
rise to the right of such Finance Party to receive payments as referred
to in this Clause 13.1, giving reasonable details of the likely
calculation of such increased cost and basis on which it is
attributable to the Facility, provided that such Finance Party shall
not be required to divulge information of a confidential nature with
respect to its business.
13.2 EXCEPTIONS
Clause 13.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the operation of Clause 11 (Taxes) (or
which would have been so compensated for but for the operation
of Clause 11.3(a) (Recognised Bank)), Clause 8.1(c) (Interest
rate) or Clause 13.3 (Regulation D Compensation); or
(b) attributable to any change in the rate of tax on the overall
net income or gains of a Bank imposed in the jurisdiction in
which its principal office is located or on the overall net
income or gains of the Bank's Facility Office by the
jurisdiction in which that Facility Office is located.
13.3 REGULATION D COMPENSATION
Unless such additional interest is paid in accordance with Clause
8.1(c) (Interest rate), any Bank which is required by Regulation D
issued by the Board of Governors of the Federal Reserve System of the
U.S.A. to maintain and does maintain any reserves against "EUROCURRENCY
LIABILITIES" (as defined in such Regulation) pursuant to such
Regulation may require any U.S. Obligor to pay, contemporaneously with
each payment of interest on any Advance (in respect of which the
Eurodollar Reserve Percentage applies) made to such U.S. Obligor for
any Term relative thereto, additional interest on the participation of
such Bank in that Advance at the rate per annum determined from the
formula (A)(i) LIBOR applicable to such Advance for that Term divided
by (ii) one MINUS the Euro-Dollar Reserve Percentage
<PAGE> 36
MINUS (B) LIBOR applicable to such Advance for that Term. Any Bank
requiring payment by any U.S. Obligor of such additional interest shall
notify such U.S. Obligor and the Facility Agent at least five Business
Days prior to the last day of each Term for each relevant Advance of
the amount due to be paid to it with respect to such Advance pursuant
to this Clause 13.3 (certifying in that notice that the amount claimed
does not exceed such part of the cost to such Bank of maintaining such
reserves as in the opinion of that Bank should fairly and reasonably be
apportioned to such Advance), which notice shall be final and binding
in the absence of manifest error. No Bank shall be required to disclose
in support of any claim hereunder any information reasonably regarded
by such Bank as being confidential.
14. ILLEGALITY
If it becomes (or any change in the interpretation, administration or
application of any law makes it apparent that it is) unlawful in any
applicable jurisdiction or contrary to any applicable official
regulation (if not having the force of law, being one with which it is
the practice of banks, trusts, funds or financial institutions in the
relevant jurisdiction to comply), for a Finance Party to give effect to
any of its obligations as contemplated by this Agreement or to fund or
maintain its participation in any Advance then:
(a) the Finance Party may notify the Obligors' Agent through the
Facility Agent accordingly; and
(b) (i) each Borrower shall forthwith or by such later
date as is immediately prior to the illegality taking
effect prepay that Finance Party's participation in
all such Advances made to it together with all other
amounts payable by it to that Finance Party under
this Agreement as shall be necessary to avoid any
such illegality or breach; and
(ii) to the extent necessary to avoid any such illegality
or breach such Finance Party's Commitment shall be
cancelled and the obligations of the Finance Party to
the Borrowers hereunder shall cease.
15. MITIGATION
15.1 MITIGATION
If Clauses 11 (Taxes), 13 (Increased Costs) or 14 (Illegality) operate
in relation to any Finance Party to the detriment of any Borrower:
(a) such Finance Party shall, upon the request of the Obligors'
Agent, enter into discussions with the Obligors' Agent with a
view to determining what mitigating action might be taken by
such Finance Party; and
(b) at the request of the Obligors' Agent, the Facility Agent and
the relevant Finance Party will enter into discussions with
the Obligors' Agent with a view to determining what mitigating
action might be taken by such Finance Party (including without
limitation identifying replacement bank(s) or other financial
institution(s) who may be willing to become party to this
Agreement in place of such Finance Party) or by the Facility
Agent with respect to the administration of this Agreement;
<PAGE> 37
PROVIDED THAT nothing in this Clause shall oblige any Finance Party to
incur any material costs or expenses or to take any action or refrain
from taking any action other than entering into such discussions in
good faith.
15.2 COSTS AND EXPENSES
Any costs and expenses reasonably incurred by any Finance Party
pursuant to this Clause 15 shall be paid by the Obligors' Agent within
five Business Days after receipt of a demand specifying the same in
reasonable detail.
16. GUARANTEE
16.1 GUARANTEE
Each Guarantor irrevocably, unconditionally, jointly and severally:
(a) as principal obligor, and not merely as surety, guarantees to
each Finance Party prompt performance by each other Obligor of
all its payment obligations under the Finance Documents;
(b) undertakes with each Finance Party that whenever a Borrower
does not pay any amount when due under or in connection with
any Finance Document, that Guarantor shall forthwith on demand
by the Facility Agent pay that amount as if that Guarantor
instead of the relevant Borrower were expressed to be the
principal obligor; and
(c) indemnifies each Finance Party on demand against any loss or
liability suffered by such Finance Party if any obligation
guaranteed by that Guarantor is or becomes unenforceable,
invalid or illegal.
16.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Obligors or any of them
under the Finance Documents, regardless of any intermediate payment or
discharge in whole or in part.
16.3 REINSTATEMENT
(a) Where any discharge (whether in respect of the obligations of any
Obligor or any security for those obligations or otherwise) is made in
whole or in part or any arrangement is made on the faith of any
payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without limitation,
the liability of each Guarantor under this Clause 16 shall continue as
if the discharge or arrangement had not occurred.
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration.
16.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 16 will not be
affected by any act, circumstance, omission, matter or thing which, but
for this provision, would reduce, release or prejudice any of its
obligations under this Clause 16 or prejudice or diminish those
<PAGE> 38
obligations in whole or in part, including without limitation (whether
or not known to it or any other Party):
(a) any time, indulgence or waiver granted to, or composition
with, any Obligor or other person;
(b) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights or remedies against, or security over
assets of, any Obligor or other person or any non-presentation
or non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full
value of any security;
(c) any legal limitation, disability, incapacity or lack of
powers, authority or legal personality of or dissolution or
change in the members or status of any Obligor or any other
person;
(d) any variation (however fundamental and whether or not
involving an increase in liability of any Obligor) or
replacement of a Finance Document or any other document or
security so that references to that Finance Document in this
Clause 16 shall include each variation or replacement;
(e) any unenforceability, illegality, invalidity or frustration of
any obligation of any person under any Finance Document or any
other document or security or any failure of any Obligor or
proposed Obligor to become bound by the terms of any Finance
Document;
(f) any postponement, discharge, reduction, non-provability or
other similar circumstance affecting any obligation of any
Obligor under a Finance Document resulting from any
insolvency, liquidation or dissolution proceedings or from any
law, regulation or order,
so that each such obligation shall, for the purposes of the Guarantor's
obligations under this Clause 16, remain in full force and be construed
as if there were no such act, circumstance, variation, omission, matter
or thing.
16.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment from
or file any proof or claim in any insolvency proceedings of any person
before claiming from that Guarantor under this Clause 16.
16.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full, each Finance Party (or any trustee or agent on its behalf)
may:
(a) refrain from applying or enforcing any other moneys, security
or rights held or received by that Finance Party (or any
trustee or agent on its behalf) in respect of
<PAGE> 39
those amounts, or apply and enforce the same in such manner
and order as it sees fit (whether against those amounts or
otherwise) and no Guarantor shall be entitled to the benefit
of the same; and
(b) hold in an interest bearing suspense account any moneys
received from any Guarantor or on account of any Guarantor's
liability under this Clause 16.
16.7 NON-COMPETITION
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full, no Guarantor shall, after a claim has been made or by virtue
of any payment or performance by it under this Clause 16:
(a) be subrogated to any rights, security or moneys held, received
or receivable by any Finance Party (or any trustee or agent on
its behalf) or be entitled to any right of contribution or
indemnity in respect of any payment made or moneys received on
account of that Guarantor's liability under this Clause 16
and, to the extent that any Guarantor is so subrogated or
entitled by law, that Guarantor (to the fullest extent
permitted by law) waives and agrees not to exercise or claim
those rights, security or money or that right of contribution
or indemnity;
(b) claim, rank, prove or vote as a creditor of any Obligor or its
estate in competition with any Finance Party (or any trustee
or agent on its behalf) unless otherwise required by the
Facility Agent or by law (in which case any proceeds of any
claim in respect of any rights, security or monies of any
Finance Party to which such Guarantor was subrogated will be
paid by such Guarantor to the Facility Agent to be applied in
accordance with the provisions of the Finance Documents); or
(c) receive, claim or have the benefit of any payment,
distribution or security from or on account of any Obligor, or
exercise any right of set-off as against any Obligor (and
without prejudice to the foregoing, each Guarantor shall
forthwith pay to the Facility Agent for the benefit of the
Finance Parties an amount equal to any amount so set off by
it).
Each Guarantor shall hold in trust for and forthwith pay or transfer to
the Facility Agent for the Finance Parties any payment or distribution
or benefit of security received by it contrary to this Clause 16.7.
16.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by
any other security now or hereafter held by any Finance Party.
16.9 LIMITATIONS
Notwithstanding any other provision of this Clause 16 the obligations
of each U.S. Obligor in its capacity as a Guarantor under this Clause
16 shall be limited to a maximum aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of
Title 11 of the United States Bankruptcy Code or any applicable
provisions of comparable state law (collectively,
<PAGE> 40
the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect to
all other liabilities of such U.S. Obligor, contingent or otherwise,
that are relevant under the Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of such U.S. Obligor in respect of
intercompany indebtedness to the Borrowers or Affiliates of the
Borrowers to the extent that such indebtedness would be discharged in
an amount equal to the amount paid by such U.S. Obligor hereunder) and
after giving effect as assets to the value (as determined under the
applicable provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, contribution, reimbursement, indemnity or similar rights
of such U.S. Obligor pursuant to (i) applicable law or (ii) any
agreement providing for an equitable allocation among such U.S. Obligor
and other Affiliates of the Borrowers of obligations arising under
guarantees by such parties.
17. ADDITIONAL BORROWERS, GUARANTORS AND SECURITY
17.1 ADDITIONAL BORROWERS
(a) If any wholly-owned Subsidiary incorporated in the United States or the
United Kingdom of the Parent wishes to become a Borrower, it and the
Obligors' Agent (for itself and on behalf of the existing Borrowers and
Guarantors) shall first execute and deliver to the Facility Agent a
duly completed Guarantor Accession Agreement and then a Borrower
Accession Agreement.
(b) Delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and the Obligors' Agent, constitutes confirmation by that
Subsidiary and the Obligors' Agent that the representations and
warranties set out in Clause 18 (Representations and Warranties) to be
made by them on the date of the Borrower Accession Agreement are
correct as if made by them with reference to the facts and
circumstances then existing.
(c) If all the Banks confirm to the Facility Agent their agreement to the
relevant Subsidiary becoming a Borrower (such agreement not to be
unreasonably withheld), the Facility Agent shall execute such Borrower
Accession Agreement for itself and on behalf of the other Finance
Parties.
(d) Subject to paragraph (e) below, upon execution of a Borrower Accession
Agreement by the relevant Subsidiary, the Obligors' Agent and the
Facility Agent, such Subsidiary shall become an Additional Borrower in
accordance with the terms of this Agreement but the Additional
Borrower's right to request Advances under this Agreement may be
limited in accordance with the terms of the Borrower Accession
Agreement.
(e) The obligations of the Finance Parties to such Additional Borrower with
respect to the making of an Advance to it under this Agreement, are
subject to the conditions precedent that the Facility Agent shall have
received in form and substance satisfactory to it (acting reasonably)
each of the documents listed in Schedule 3 Part II and such other
reports, opinions and other documents relating to such Additional
Borrower as the Facility Agent may reasonably require.
17.2 ADDITIONAL GUARANTORS
(a) In order to comply with Clause 17.1 (Additional Borrowers) and Clause
19.32 (Obligor cover) the Parent shall procure that sufficient
Subsidiaries accede as Guarantors to this
<PAGE> 41
Agreement by delivering duly executed and completed Guarantor Accession
Agreements to the Facility Agent.
(b) Delivery of a duly executed and completed Guarantor Accession Agreement
to the Facility Agent, will evidence the accession of the relevant
Subsidiary as an Additional Guarantor and will constitute confirmation
by that Subsidiary and the Parent that the representations and
warranties set out in Clause 18 (Representations and Warranties) to be
made by them on the date of the Guarantor Accession Agreement are
correct, as if made by them with reference to the facts and
circumstances then existing.
(c) The Parent shall procure that any Additional Guarantor shall also
deliver each of those documents listed in Part II Schedule 3 and such
other reports, opinions and documents relating to such Additional
Guarantors as the Facility Agent may reasonably require, together with
the Guarantor Accession Agreement, in each case, in form and substance
satisfactory to the Facility Agent.
17.3 SECURITY
(a) The Obligors shall procure that:
(i) the Security Documents specified in Schedule 6 are executed
and delivered to the Security Agent on the Signing Date; and
(ii) if a Subsidiary acquires any asset of material value or
material to the operation of the business of any member of the
Group, such that on the date of acquisition the Subsidiary
would be required to accede as a Guarantor and execute
security in favour of the Security Agent pursuant to Clause
19.32 (Obligor cover) of this Agreement (with reference to the
most recent monthly and consolidated Accounts) the member of
the Group acquiring such asset shall (if such asset is not, in
the opinion of the Security Agent, subject to a charge under
any existing Security Document) promptly execute and deliver
to the Security Agent and in any event within 30 days of such
entity becoming a member of the Group such further or
additional Security Documents in relation to such assets as
the Majority Banks may require in substantially the same terms
as the Security Documents charging similar assets entered into
on the Signing Date.
(b) The Obligors shall procure that any entity which becomes a member of
the Group after the Signing Date shall, if required by the Security
Agent and if necessary in order to comply with Clause 19.32 (Obligor
cover), promptly execute and deliver to the Security Agent and in any
event within 30 days of such entity becoming a member of the Group such
Security Documents in substantially the same terms as the Security
Documents entered into at the Signing Date subject to any provision of
law prohibiting such person from entering into such Security Documents.
(c) Where any such prohibition as is referred to above exists, the Obligors
shall use their reasonable endeavours lawfully to overcome the
prohibition.
(d) The Obligors shall at their own expense execute and do all such
assurances, acts and things (i) as the Security Agent may reasonably
require for perfecting or protecting the security intended to be
afforded by the Security Documents (and shall deliver to the Security
Agent
<PAGE> 42
such directors and shareholders resolutions, title documents and other
documents as the Security Agent may reasonably require) or (ii) as the
Security Agent may require for facilitating the realisation of all or
any part of the assets which are subject to the Security Documents and
the exercise of all powers, authorities and discretions vested in the
Security Agent or in any receiver of all or any part of those assets.
17.4 RELEASE OF GUARANTORS AND SECURITY
(a) Subject to paragraph (c) below, at the time of completion of any sale
or other disposal to a person or persons outside (and which will remain
outside) the Group of all of the shares in the capital of any Guarantor
(or of all of the shares in any other member of the Group such that any
Guarantor ceases as a result thereof to be a member of the Group) and
in such other circumstances (if any) as the Facility Agent (acting on
the instructions of the Majority Banks acting reasonably) may from time
to time agree in writing, such Guarantor shall be released from all
past, present and future liabilities (both actual and contingent and
including, without limitation, any liability to any other Guarantor by
way of contribution) hereunder and under the Security Documents to
which it is a party (other than liabilities which it has in its
capacity as a Borrower), and the security provided over its assets
under such Security Documents shall be released.
(b) Subject to paragraph (c) below, at the time of completion of any sale
or other disposal to a person or persons outside (and which will remain
outside) the Group of any assets owned by an Obligor over which
security has been created by the Security Documents to which that
Obligor is party, those assets shall be released from such security.
(c) The release of the guarantees and security referred to in paragraphs
(a) and (b) above shall only occur (save to the extent otherwise agreed
by the Facility Agent acting on the instructions of the Majority Banks)
if:
(i) either (1) such disposal by any member of the Group is
permitted by the provisions of this Agreement and will not
result directly or indirectly in any breach of any of the
terms of this Agreement, or (2) such disposal is being
effected at the request of the Majority Banks in circumstances
where any of the security created by the Security Documents
has become enforceable, or (3) such disposal is being effected
by enforcement of the Security Documents; and
(ii) any assets to be transferred to other members of the Group
before completion of such disposal shall have been so
transferred and (if so required by the Facility Agent acting
on the instructions of the Majority Banks) security over those
assets shall have been granted to the Security Agent on terms
equivalent to those in the existing Security Documents to its
satisfaction.
The Security Agent shall (at the expense of the relevant Obligor)
execute such documents effecting such release as shall be reasonably
required to achieve such release as aforesaid (and the Security Agent
shall execute such documents promptly upon (and only upon) it being
satisfied that the conditions in (i) and (ii) above are satisfied or
the Majority Banks have otherwise agreed).
(d) If any person which is a member of the Group shall cease to be such a
member in consequence of the enforcement of any of the Security
Documents or in consequence of a
<PAGE> 43
disposal of the shares therein or in any Holding Company of it effected
at the request of the Majority Banks in circumstances where any of the
security created by the Security Documents has become enforceable, any
claim which any Obligor may have against such person or any of its
Subsidiaries or which that person or any of its Subsidiaries may have
against any Obligor in or arising out of this Agreement or any of the
Security Documents (including, without limitation, any claim by way of
subrogation to the rights of the Agents and the Banks under the Finance
Documents and any claim by way of contribution or indemnity) shall be
released automatically and immediately upon such person ceasing to be a
member of the Group.
18. REPRESENTATIONS AND WARRANTIES
18.1 REPRESENTATIONS AND WARRANTIES
Each Obligor makes to each Finance Party the representations and
warranties set out in this Clause 18 (other than in respect of the
representations and warranties in Clauses 18.1(j) (Prospectus), 18.1(k)
(Financial Forecasts), 18.1(l) (Base Financial Statements), 18.1(v)
(Information Memorandum) and 18.1(w) (Structure Memorandum) which are
made by the Parent only).
(a) STATUS: It is, and each Subsidiary of it is, a limited
liability company or, in the case of a U.S. Person
corporation, duly incorporated or established and validly
existing under the laws of the jurisdiction of its
incorporation or establishment, with the power to own its
assets and carry on its business as it is being conducted, and
no administrator, receiver, liquidator or similar official has
been appointed with respect to it or any member of the Group
or with respect to the assets of any of them who has not been
released, discharged or resigned from such appointment and no
petition or proceeding for such an appointment is pending.
(b) POWERS AND AUTHORITY: It has the power to enter into and
perform, and has taken all necessary action to authorise the
entry into, performance and delivery by it of, the Finance
Documents to which it is or will be a party and the
transactions contemplated by those Finance Documents.
(c) LEGAL VALIDITY: Subject to the Reservations, each Finance
Document to which it is or will be a party constitutes, or
when executed in accordance with its terms will constitute,
its legal, valid and binding obligation and no limit on its
powers will be exceeded as a result of the borrowings, grant
of security or giving of guarantees contemplated by the
Finance Documents to which it is a party.
(d) NON-CONFLICT: The entry into and performance by it of, and the
transactions contemplated by, the Finance Documents do not and
will not:
(i) conflict with any law or judicial or official
regulation applicable to it; or
(ii) conflict with its constitutional documents; or
(iii) conflict in any material respect with any agreement
or document which is binding upon it, or any other
member of the Group or any of its assets or any
assets of any other member of the Group; or
<PAGE> 44
(iv) entitle any third party to terminate any
material contract with any member of the Group.
(e) NO DEFAULT:
(i) No Event of Default is outstanding which has not
been waived or is reasonably likely to result from
the making of any Advance; and
(ii) no other event is outstanding which constitutes (or,
with the giving of notice, lapse of time or the
making of any determination (other than a
determination as to materiality which is not
satisfied), will or any combination of the foregoing
is reasonably likely to constitute) a default under
any agreement or document which is binding on any
member of the Group or any asset of any member of the
Group, which event or default or any action which any
third party is entitled to take following any such
event or default would have a Material Adverse
Effect.
(f) AUTHORISATIONS: All authorisations required by it in
connection with the entry into, performance, validity and
enforceability of, and the transactions contemplated by, the
Finance Documents have been obtained or effected (as
appropriate) and are in full force and effect save for any
filings and registrations necessary in connection with the
Security Documents which can be effected by or on behalf of
the Security Agent (and without the need for any action by any
member of the Group) after the date hereof.
(g) ACCOUNTS:
(i) Its Accounts most recently delivered to the Facility
Agent (if audited) present a true and fair view of or
(if unaudited) fairly present its and (if
consolidated) its Subsidiaries consolidated financial
condition as at the date to which they were drawn up,
subject in the case of quarterly and monthly Accounts
to which, save as adjusted in accordance with Clause
19.5 (Audit and Accounting Dates), have been normal
year end adjustments.
(ii) Its audited accounts (whether consolidated or
unconsolidated) most recently delivered to the
Facility Agent:
(A) have been prepared in accordance with
Applicable Accounting Principles, which,
save as adjusted in accordance with Clause
19.5 (Audit and Accounting Dates) have been
consistently applied; and
(B) fairly represent the financial condition of
that Obligor and, where applicable, its
Subsidiaries as at the date to which they
were drawn up, and since such date there has
been no material adverse change in the
financial condition of that Obligor or,
where applicable, the consolidated financial
position of that Obligor and its
Subsidiaries.
(iii) All forecasts and projections delivered to the
Facility Agent pursuant to Clause 19.3 (Projections)
(other than those already contained in the
<PAGE> 45
Information Memorandum) were based on assumptions
considered to be fair and reasonable as at the date
of such delivery and were provided in good faith.
(h) LITIGATION AND LABOUR DISPUTES: No litigation, arbitration,
administrative or regulatory proceedings are current or, to
its knowledge, pending or threatened, which are reasonably
likely to be adversely determined to it and which would, if so
determined, have a Material Adverse Effect. No labour disputes
are current or, to its knowledge, threatened which would have
a Material Adverse Effect.
(i) TAX LIABILITIES: No claims are being or are reasonably likely
to be asserted against any member of the Group with respect to
Taxes which are reasonably likely to be determined adversely
to such member of the Group and which, if so adversely
determined, would have a Material Adverse Effect. It is not
overdue in the filing of any material Tax returns where such
later filing might result in any fine or penalty.
(j) PROSPECTUS:
(i) The Prospectus did not, at the time that it was
declared effective under the U.S. Securities Act of
1933, as amended, contain any untrue statement of a
material fact or omit to state any material fact
required to be stated therein or necessary in order
to make the statements therein, in light of the
circumstances under which they were made, not
misleading.
(ii) Nothing has occurred or come to light which renders
any of the material factual information, expressions
of opinion or intention, projections or conclusions
contained in the Prospectus inaccurate or misleading
(or in the case of expressions of opinion,
conclusions or projections, other than fair and
reasonable) in any material respect in the context of
the Acquired Assets, the Group and the transactions
contemplated hereby.
(k) FINANCIAL FORECASTS:
The forecasts and projections contained in the Financial
Forecasts are reasonable and are reasonably believed by the
Parent (which shall be deemed to have the belief of each of
the Executive Officers) to be attainable.
(l) BASE FINANCIAL STATEMENTS:
(i) So far as it is aware after due and careful enquiry
(the knowledge of each of the Executives being
imputed to each Obligor) the Base Financial
Statements have been prepared in accordance with the
Applicable Accounting Principles and fairly present
the consolidated financial position of the Target
Group, as at the date to which the same were prepared
and/or (as appropriate) the results of operations and
changes in financial position during the period for
which they were prepared, subject, in the case of
management Accounts, to normal year end adjustments,
and the Accounts referred to in paragraphs (a) and
(c) of the definition of Base Financial Statements in
Clause 1.1 do not consolidate or include the results
of any company, business or partnership whose
business at the Closing Date is not part of the
Acquired Assets.
<PAGE> 46
(ii) There has been no material adverse change in the
business, assets or financial condition of the
Acquired Assets (taken as a whole) since the date to
which the latest of the Base Financial Statements in
which its financial position and results of
operations are reflected were prepared.
(m) INTELLECTUAL PROPERTY RIGHTS:
(i) It and each of its Subsidiaries which is a Material
Subsidiary owns or has licensed to it all the
Intellectual Property Rights which are material in
the context of its (or such Material Subsidiaries')
business and which are required by it (or such
Material Subsidiary) in order for it to carry on its
business in all material respects as it is being
conducted and as contemplated in the Financial
Forecasts and as far as it is aware it does not (nor
do any of its Subsidiaries which is a Material
Subsidiary), in carrying on its business, infringe
any Intellectual Property Rights of any third party
in any material respect.
(ii) It and each of its Subsidiaries which is a Material
Subsidiary has taken all actions (including payment
of fees) required to maintain in full force and
effect any registered Intellectual Property Rights
owned by it which are material in the context of its
(or such Material Subsidiaries') business or which
are required by it (or such Material Subsidiary) in
order for it to carry on its business in all material
respects as it is being conducted and as contemplated
in the Financial Forecasts.
(iii) It and each of its Subsidiaries which is a Material
Subsidiary has the right to use all trade names and
has not entered into any agreements restricting the
use of such trade names.
(n) ENVIRONMENTAL MATTERS:
(i) It and its Subsidiaries have obtained all requisite
Environmental Licences required for the carrying on
of its business as currently conducted and have at
all times complied with (A) the terms and conditions
of such Environmental Licences and (B) all other
applicable Environmental Laws which, in each case, if
not obtained or complied with would have a Material
Adverse Effect or a material adverse effect on the
value (taken as a whole) of the real property charged
pursuant to the Security Documents. There are to its
knowledge no circumstances which may prevent or
interfere with such compliance in the future.
(ii) There is no Environmental Claim current or (to its
knowledge) pending or threatened, and there are no
past or present acts, omissions, events or
circumstances that would be reasonably likely to form
the basis of any Environmental Claim (including,
without limitation, any arising out of the
generation, storage, transport, disposal or release
of any Dangerous Substance), against any Obligor
which, if adversely determined, would have a Material
Adverse Effect.
<PAGE> 47
(o) PARI PASSU RANKING: Its obligations under the Finance
Documents rank and will rank at least pari passu with all its
other unsecured obligations.
(p) OWNERSHIP OF ASSETS:
Save to the extent disposed of without breaching the terms of
any of the Finance Documents, with effect from and after the
Signing Date, and as at the time this representation is given
or repeated, it and each of its Subsidiaries which is a
Material Subsidiary has good title to or valid leases or
licences of or is otherwise entitled to use and permit other
members of the Group to use all material assets necessary, in
the case of an Obligor, to conduct its business as conducted
by it at such time; and
(q) SECURITY DOCUMENTS: It is the beneficial owner of the property
which it purports to charge with full title guarantee free and
clear of any Encumbrances (other than Permitted Encumbrances)
pursuant to any of the Security Documents. The shares charged
by it pursuant to the Security Documents are all fully paid
and non-assessable and are not subject to any option to
purchase or similar rights.
(r) ERISA:
(i) No act, omission or transaction has occurred
which will result in the imposition on any U.S.
Obligor of:
(1) any penalty assessed pursuant to ERISA or
a tax imposed by section 4975 of the IRC;
(2) breach of fiduciary duty liability damages
under section 409 of ERISA,
which would in any such case have a Material Adverse
Effect.
(ii) No U.S. Obligor or ERISA Affiliate has maintained, or
had an obligation to contribute to, or has any
liability or potential liability with respect to any
Plan.
(iii) Payment has been made of all amounts which any U.S.
Obligor or any ERISA Affiliate is required under the
terms of each Plan or applicable law to have paid as
contributions to such Plan, except as could not
reasonably be expected to have a Material Adverse
Effect.
(iv) Each U.S. Obligor and each ERISA Affiliate are in
compliance in all material respects with the
presently applicable provisions of ERISA, the IRC,
and all other applicable laws and regulations with
respect to each Plan and with respect to each other
employee benefit plan as such term is defined in
Section 3(3) of ERISA except as could not reasonably
be expected to have a Material Adverse Effect.
(v) Neither any U.S. Obligor nor any ERISA Affiliate (nor
any trade or business that was an ERISA Affiliate)
has at any time contributed to or been obliged to
contribute to any Multiemployer Plan which, upon the
complete or partial
<PAGE> 48
withdrawal of the U.S. Obligor or any ERISA Affiliate
from such Plan, could result in the imposition of
complete or partial withdrawal liability which would
a Material Adverse Effect.
(vi) There are no actions, suits or claims pending (other
than routine claims for benefits) against any Plan or
the assets of any such Plan, except as could not
reasonably be expected to have a Material Adverse
Effect.
(vii) No ERISA Event has occurred or is reasonably expected
to occur.
(viii) Except to the extent required under Section 4980B of
the IRC, no employee benefit plan (as such term is
defined in Section 3(3) of ERISA) provides health or
welfare benefits beyond the last day of the calendar
month in which termination of employment occurs for
any retired or former employee of any U.S. Obligor or
any of their respective ERISA Affiliates.
(s) INVESTMENT COMPANY STATUS: Each U.S. Obligor is either (i) not
an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for an "investment
company" in each case within the meaning of the United States
Investment Company Act of 1940, as amended or (ii) is exempt
from all provisions of such Act, as amended.
(t) SOLVENCY OF U.S. OBLIGORS: At the date of this Agreement, each
U.S. Obligor is, and immediately after consummation of the
transactions contemplated to occur under this Agreement and
the other Finance Documents and after giving effect to all
obligations incurred and Encumbrances created by such U.S.
Obligor in connection herewith and therewith will be, Solvent.
No Obligor is entering into this Agreement or the transactions
contemplated hereby with actual intent to hinder, delay or
defraud either present or future creditors. As used in this
Agreement, "SOLVENT" means, with respect to any U.S. Obligor
on a particular date, that on such date (i) the fair value of
the assets of such U.S. Obligor is greater than the total
amount of liabilities, including, without limitation,
subordinated and contingent liabilities, of such U.S. Obligor,
(ii) the amount that will be required to pay the probable
liabilities of such U.S. Obligor on its debts as they become
absolute and matured will not be greater than the fair
saleable value of the property of such U.S. Obligor at such
time, (iii) such U.S. Obligor is able to realise upon its
assets and pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the normal
course of business, (iv) such U.S. Obligor does not intend to,
and does not believe that it will, incur debts or liabilities
beyond such U.S. Obligor's ability to pay as such debts and
liabilities become absolute and mature, and (v) such U.S.
Obligor is not engaged in a business or a transaction, and is
not about to engage in a business or a transaction, for which
such U.S. Obligor's property would constitute unreasonably
small capital with which to conduct the businesses in which it
is engaged. In computing the amount of any contingent
liability at any time, it is intended that such liability will
be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount
that might reasonably be expected to become an actual or
matured liability and taking into account the value of rights
of contribution, reimbursement and subrogation which such U.S.
Obligor might reasonably be expected to realise in respect
thereof.
<PAGE> 49
(u) YEAR 2000: The Parent and its Subsidiaries (including after
completion of the TIB Acquisition, the Target Group) have
taken steps that are reasonable to ensure that the occurrence
of the year 2000 will not, or is not reasonably likely to,
have a Material Adverse Effect on it or its Subsidiaries'
information and business systems.
(v) INFORMATION MEMORANDUM:
(i) The factual information in relation to the Group in
the Information Memorandum is to the best of the
Parent's knowledge and belief true and accurate in
all material respects, opinions expressed about the
Group in the Information Memorandum were honestly
held and all projections in the Information
Memorandum were based on assumptions considered to be
reasonable as at the date of which the Information
Memorandum speaks and all such factual information,
opinions and assumptions were provided in good faith.
(ii) The Information Memorandum did not omit at its date
any information which made misleading in any material
respect any information in the Information
Memorandum.
(w) STRUCTURE MEMORANDUM: The Structure Memorandum contains
descriptions which in all material respects are true, complete
and correct of the corporate ownership structure of the Group
(including details of any minority shareholdings held by any
person who is not a member of the Group, details of all
partnership, joint ventures and co-operative agreements in
which any member of the Group has an interest and details of
any minority shareholding owned by any member of the Group)
showing each Subsidiary and all inter-company Borrowings (of a
type specified in paragraphs (a), (b) or (c) of the definition
of "Borrowings" in Clause 1.1) of more than U.S.$500,000 (or
its equivalent in other currencies) as they will be
immediately after the Signing Date.
(x) SENIOR INDEBTEDNESS/DESIGNATED SENIOR INDEBTEDNESS: The
Advances and all other monetary obligations of the Parent,
whether in its capacity as a Borrower, a Guarantor or
otherwise, under any of the Finance Documents constitute
"Senior Indebtedness" and "Designated Senior Indebtedness" as
defined in the indenture dated 27th May, 1998 made between the
Parent and The Bank of New York, as trustee, relating to the
Parent's 4.75% Convertible Subordinated Notes due 2003.
18.2 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in Clause 18.1
(Representations and warranties) above:
(a) (i) (except in the case of Clauses 18.1(v) (Information
Memorandum) in the case of each Obligor which is a
Party on the Signing Date are made on that date and
on the first Drawdown Date; and
(ii) in the case of an Obligor which becomes a Party after
the Signing Date, will be deemed to be made by that
Obligor on the date it executes a Borrower Accession
Agreement or Guarantor Accession Agreement;
<PAGE> 50
(b) in the case of Clause 18.1(v) (Information Memorandum) will be
made on the date on which the Information Memorandum is
initialled for identification by the Arranger and together
with Clauses 18.1(j) (Prospectus), 18.1(k) (Financial
Forecasts), 18.1(l) (Base Financial Statements) and 18.1(w)
(Structure Memorandum) will also be made on the last day of
the Primary Syndication Period.
(c) with the exception of Clause 18.1(j) (Prospectus), 18.1(l)
(Base Financial Statements), 18.1(n)(i) (Environmental
matters), 18.1(r)(ii) (ERISA), 18.1(v) (Information
Memorandum) and 18.1(u) (Year 2000), are deemed to be repeated
by each Obligor on the date of each Request and each Drawdown
Date with reference to the facts and circumstances then
existing; and
(d) in the case of Clause 18.1(u) (Year 2000), is deemed to be
repeated by each Obligor on the date of each Request and each
Drawdown Date with reference to the facts and circumstances
then existing provided that the obligation to make this
representation will cease on 15th January, 2000.
19. UNDERTAKINGS
19.1 DURATION
The undertakings in this Clause 19 remain in force from the date of
this Agreement for so long as any amount is or may be outstanding under
this Agreement or any Commitment is in force.
19.2 FINANCIAL INFORMATION
The Parent shall supply to the Facility Agent in sufficient copies for
all the Banks:
(a) as soon as the same are available (and in any event within
120 days of the end of each of its financial years):
(i) the audited consolidated accounts of the Group for
that financial year; and
(ii) promptly upon request by the Facility Agent, the
audited accounts, if prepared, of each Obligor
(consolidated in the case of an Obligor with
Subsidiaries) for that financial year;
(b) as soon as available (and in any event within 45 days) after
the end of each consecutive three month period ending on an
Accounting Date, unaudited consolidated management accounts of
the Group for that three month period in a form and showing
the detailed information provided for in the Proforma Accounts
together with a written report by an Executive Officer
explaining any material variances against budget and the
Financial Forecasts for that period;
(c) as soon as available (and in any event within 45 days) after
the end of each calendar month the unaudited consolidated
management accounts of the Group for that month in a form and
showing the detailed information provided for in the Proforma
Accounts and with each set of monthly consolidated management
accounts, a written
<PAGE> 51
report of an Executive Officer explaining any material
variances against the budget and Financial Forecasts for that
period; and
(d) (i) together with the Accounts specified in paragraph (a)
above, (A) a certificate signed by the Auditors (I)
setting out in reasonable detail computations
establishing, as at the date of such accounts,
compliance or otherwise with Clause 20.2 (Financial
Covenants), and (II) stating that the Auditors did
not in the course of their audit discover any Event
of Default which they know to be an Event of Default
or, if they did, describing the same, and (B) a
certificate signed by an Executive Officer
identifying the Material Subsidiaries and those
companies required to provide guarantees and security
in order to comply with 19.32 (Obligor cover) on the
basis of such Accounts;
(ii) together with the Accounts specified in paragraph (a)
and (b) above ending on an Accounting Date other than
31st March and 30th September (before any
adjustment), a certificate signed by two directors of
the Parent (one of whom shall be the Chief Financial
Officer) (i) setting out in reasonable detail
computations establishing compliance with Clause 20.2
(Financial Covenants) and (ii) identifying the
Material Subsidiaries and those companies required to
provide guarantees and security in order to comply
with 19.32 (Obligor cover) as at the date to which
those Accounts were drawn-up; and
(iii) together with the Accounts specified in paragraph (b)
above ending on an Accounting Date other than 31st
March and 30th September (before any adjustment) a
certificate signed by two directors of the Parent
stating that as at the date of the certificate no
Default is outstanding or, if there is an outstanding
Default, providing details of the same and of any
proposed remedial action and stating that no Default
is expected to occur before the next Accounting Date.
19.3 PROJECTIONS
(a) The Parent shall furnish to the Facility Agent in sufficient copies for
each of the Banks as soon as available and in any event prior to the
fourteenth day before the commencement of each financial year, a budget
including a projected consolidated balance sheet, profit and loss
account, Capital Expenditure forecast and cash flow statement of the
Group for (or, in the case of a balance sheet, as at the end of) such
financial year together with details of the principal assumptions
underlying such projections all as approved by the Parent's board of
directors in a format consistent with the Proforma Accounts and
prepared in accordance with the Applicable Accounting Principles.
(b) At least once in every financial year the Executive Officers of the
Parent will give a presentation to the Banks, at a time and venue
agreed with the Facility Agent, about the ongoing business and
financial performance of the Group and about such other matters
relating to the ongoing business and financial performance of the Group
as any of the Banks may reasonably request.
<PAGE> 52
19.4 NOTIFICATIONS
The Parent shall furnish or procure that there shall be furnished to
the Facility Agent in sufficient copies for each of the Banks:
(a) promptly, documents despatched by the Parent to its
shareholders generally (or any class of them) in their
capacity as such and all documents relating to the financial
obligations of any Obligor despatched by or on behalf of any
Obligor to its creditors generally (in their capacity as
creditors);
(b) promptly upon being notified of the same, details of all
transfers of more than 5% of any class of shares in the
Parent's capital;
(c) on request from the Facility Agent (to be given not more often
than twice a year unless an Event of Default is then
outstanding or the Facility Agent has reasonable grounds for
believing that there is a Default), an up to date copy of the
shareholders' register of the Parent;
(d) as soon as the same are instituted or, to its knowledge,
threatened, details of any litigation (other than any which is
frivolous or vexatious), arbitration or administrative
proceedings involving any Group member which, if adversely
determined, would involve potential or alleged liability in
excess of U.S.$1,000,000 (or its equivalent in other
currencies);
(e) promptly, such further information regarding its financial
condition, business and assets and that of the Group and/or
any member thereof (including any requested amplification or
explanation of any item in any Accounts, forecast, projections
or other material provided by any Obligor hereunder) as the
Facility Agent or any Bank through the Facility Agent may
reasonably request from time to time, provided that where any
such information is subject to a confidentiality agreement
entered into between the relevant member of the Group in the
ordinary course of its business, it shall use its reasonable
endeavours to obtain, or shall procure that the relevant
member of the Group uses its reasonable endeavours to obtain,
consent to disclose such information but if such consent is
not forthcoming, this Clause 19.4(e) will not be breached by
the failure to deliver the information subject to the
confidentiality agreement;
(f) save as provided in (g) below, written details of any Default
forthwith upon becoming aware of the same, and of all remedial
steps being taken and proposed to be taken in respect of that
Default and, promptly after being requested by the Facility
Agent, a certificate to the Facility Agent signed by a
director of the Parent confirming that there is no outstanding
Default or, if there is, giving details of the same;
(g) written details of the occurrence of any of the events
referred to in Clause 21.1(k) (Analagous proceedings) promptly
upon becoming aware of the same together with, if requested by
the Facility Agent, calculations showing whether or not any
such event has resulted in an Event of Default; and
(h) promptly, and in any event within 14 days, after (i) it has
knowledge of the occurrence of any Reportable Event, a copy of
the materials that are filed with the
<PAGE> 53
PBGC, (ii) the U.S. Obligor or any ERISA Affiliate files with
participants, beneficiaries or the PBGC a notice of intent to
terminate any such Plan, a copy of any such notice, (iii) the
receipt of notice by the U.S. Obligor or any ERISA Affiliate
from the PBGC of the PBGC's intention to terminate any Plan or
to appoint a trustee to administer any such Plan, a copy of
such notice, (iv) the U.S. Obligor or any ERISA Affiliate
knows or has reason to know of any event or condition which
might constitute ground under the provisions of Section 4042
of ERISA for the termination of (or the appointment of a
trustee to administer) any Plan, an explanation of such event
or condition, (v) the receipt by the U.S. Obligor or any ERISA
Affiliate of an assessment of withdrawal liability under ERISA
from a Multiemployer Plan, a copy of such Assessment, (vi) the
U.S. Obligor or any ERISA Affiliate knows or has reason to
know of any condition which might cause any one of them to
incur a material liability under Section 4062, 4063, 4064, or
4069 of ERISA or Section 412(n) or 4971 of the Code, an
explanation of such event or condition, and (vii) the U.S.
Obligor or any ERISA Affiliate knows, or has reason to know,
that an application is to be, or has been, made to the
Secretary of the Treasury for a waiver of the minimum funding
standard under the provisions of Section 412 of the Code, a
copy of such application, and, in each case described in
sub-paragraphs (i) to (iii) (inclusive) and (iv) to (vi)
(inclusive) a statement signed by the chief financial officer
of the U.S. Obligor setting forth details as to such
Reportable Event, notice, event or condition and the action
which the U.S. Obligor or such ERISA Affiliate proposes to
take with respect thereto.
19.5 AUDIT AND ACCOUNTING DATES
The Parent will ensure that:
(a) each annual Accounting Period and each quarterly Accounting
Period, as the case may be, of the Group ends on an Accounting
Date;
(b) each of its annual Accounting Periods will end on 31st
December; and
(c) all Accounts are prepared in accordance with the Applicable
Accounting Principles or where any Accounts have been prepared
in any respect so as to depart materially from the Applicable
Accounting Principles the Parent shall provide to the Facility
Agent (in sufficient copies for the Banks) a written
explanation (and calculations in reasonable detail) prepared
or confirmed by the Auditors in the case of audited Accounts
of the effect of such departure on the financial covenants in
Clause 20 (Financial Covenants) and the definitions referred
to therein. The Facility Agent (acting on the instructions of
the Majority Banks) may, at the cost of the Parent, instruct
the Auditors to check any such calculations where the Facility
Agent has reasonable grounds for believing that they may be
inaccurate, save that where such calculations are determined
to be accurate, the costs will be for the account of the
Facility Agent. If the Majority Banks approve any such
departure it shall become part of the Applicable Accounting
Principles.
<PAGE> 54
19.6 NEGATIVE PLEDGE
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, create or permit to subsist any Encumbrance on the
whole or any part of its respective present or future business, assets
or undertaking except for Permitted Encumbrances.
19.7 TRANSACTIONS SIMILAR TO SECURITY
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will:
(a) sell, transfer or otherwise dispose of:
(i) any of its assets on terms whereby such asset is or
it is contemplated is likely to be leased to or
re-acquired or acquired by any member of the Group;
or
(ii) any of its receivables on recourse terms except for
the discounting of bills and notes in the ordinary
course of business where the resulting Borrowing is
permitted by Clause 19.10 (Borrowing); and
(b) except for assets acquired in the normal course of trading,
purchase any asset on terms providing for a retention of title
by the vendor or on conditional sale terms or on terms having
a like substantive effect to any of the foregoing.
19.8 DISPOSALS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, either in a single transaction or in a series of
transactions, sell, transfer, lease or otherwise dispose of:
(a) any shares in any member of the Group (other than (i) the
issue of stock of the Parent permitted to be issued pursuant
to Clause 19.18 (Share Capital) and (ii) the disposal of any
shares in a member of the Group which is not a Material
Subsidiary or an Obligor for cash consideration payable in
full at the time of disposal and on arm's length terms for
fair market value) or in any joint venture; or
(b) all or any part of its respective assets or undertaking (not
being shares in a member of the Group or in any joint
venture), other than:
(A) sales of trading assets or the expenditure of cash,
in each case in the ordinary course of trading on
arm's-length terms;
(B) disposals of obsolete or redundant plant and
equipment, or of real property not required for the
efficient operation of its business, on arm's length
terms and for fair market value;
(C) disposals of assets in exchange for or for investment
in other assets performing substantially the same
function which are comparable or superior as to type,
market value and quality;
(D) the lending of cash and the repayment of cash lent in
compliance with the terms of the Finance Documents;
<PAGE> 55
(E) disposals of Cash Equivalent Investments on arm's
length terms;
(F) disposals of assets or undertakings by (i) a
Non-Obligor to any Obligor, and/or (ii) an Obligor to
another Obligor, provided in the latter case that
where the transferor has granted security over any
such asset or undertaking pursuant to any of the
Security Documents the transferee must at the time of
transfer provide equivalent security (to the
reasonable satisfaction of the Security Agent) over
such assets to the Security Agent and the Banks;
(G) disposals of assets on arm's length terms not
otherwise permitted under this Clause 19.8 provided
that the aggregate fair market value of the assets
disposed of during any annual Accounting Period does
not exceed U.S.$5,000,000 (or its equivalent in other
currencies); and
(H) any other disposal with the prior written consent of
the Facility Agent (acting on the instruction of the
Majority Banks).
19.9 PARI PASSU RANKING
Each Obligor undertakes that its obligations under this Agreement rank
and will at all times rank at least pari passu in right and priority of
payment with all its other present and future unsecured and
unsubordinated obligations, other than obligations applicable generally
to companies which have priority by operation of law.
19.10 BORROWINGS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, incur any Borrowings falling within paragraphs (a),
(b), (c), (d) or (h) of the definition of "BORROWINGS" in Clause 1.1
(Definitions) other than:
(a) under the Finance Documents and Existing Facilities provided
that Borrowings arising pursuant to the Existing Revolving
Credit Facility are repaid in accordance with the repayment
schedule set out in Schedule 9 and the aggregate net debt
balance under the Existing Overdraft Facility does not exceed
(pound)2,000,000; or
(b) Borrowings in the form of loans permitted pursuant to Clause
19.16(b) (Loans out); or
(c) Borrowings under the Subordinated Loan Notes; or
(d) Borrowings created or subsisting with the prior written
consent of the Facility Agent (acting on the instructions of
the Majority Banks); or
(e) any other Borrowings (including without limitation the amount
of any increase in the net debt balance under the Existing
Overdraft Facility in excess of that permitted under paragraph
(a) above) not exceeding U.S.$10,000,000 (or the equivalent in
other currencies) in aggregate for the Group as a whole at any
one time outstanding;
<PAGE> 56
19.11 LEASES
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will enter into any leases of or in respect of vehicles,
machinery, plant or equipment (the "EQUIPMENT"):
(a) if such Equipment (not being computers used for accounting and
administrative purposes only or telecommunications equipment)
is of such importance to the business of the lessee that such
business would be materially and adversely affected were such
Equipment to be repossessed by the lessor; or
(b) if the capital value of such Equipment aggregated with the
capital value of all other Equipment leased under existing
leases entered into by all members of the Group is greater
than U.S.$3,000,000 or such other higher amount agreed to by
the Majority Banks (or its equivalent in other currencies).
19.12 THIRD PARTY GUARANTEES
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, incur or permit to be outstanding any guarantee,
indemnity or other assurance against loss on the part of any person of
a type referred to in paragraph (i) of the definition of "BORROWINGS"
in Clause 1.1 other than (a) under the Finance Documents, or (b) the
endorsement of negotiable instruments for the purpose and in the
ordinary course of carrying on the relevant entity's trade, or (c)
guarantees in favour of a bank to facilitate the operation of bank
accounts of members of the Group maintained with such bank on a net
balance basis, or (d) in respect of the Borrowings of the type referred
to in Clause 19.10 (Borrowing) of any other member of the Group which
are permitted under Clause 19.10 (Borrowing) where the maximum
aggregate exposure of the Obligors under any such guarantees,
indemnities or other assurances in respect of the Borrowings of
Non-Obligors does not exceed U.S.$2,000,000 (or its equivalent in other
currencies), or (e) guarantees of the Existing Revolving Credit
Facility granted by the PhotoDisc, Inc, Allsport Photographic Ltd,
Getty Images Limited, and Hulton Getty Picture Collection Limited,
provided that the proceeds of the first Tranche A Advance shall be used
to satisfy in full the obligations to which such guarantees relate on
or before 1st November, 1999.
19.13 OPTIONS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, enter into or permit to subsist any option or other
arrangement whereby any person has the right (whether or not
exercisable only on a contingency) to require any member of the Group
to purchase or otherwise acquire or sell or otherwise dispose of any
material property or any interest in any material property otherwise
than where any such arrangement is permitted by Clause 19.8 (Disposals)
or (Treasury Transactions) or arises with respect to capital stock of
the Parent under bona fide employee stock option or incentive
agreements entered into by the Parent on terms normal for such
arrangements.
19.14 TREASURY TRANSACTIONS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, enter into any interest rate or currency swap, cap,
ceiling, collar, floor or financial futures or commodity contract or
option or any similar treasury or hedging transaction, other than
transactions entered into for the hedging of actual or projected
exposures arising in the ordinary course of
<PAGE> 57
ordinary trading activities of members of the Group carried on in
compliance with the terms of the Finance Documents for periods of not
more than 12 months. For the avoidance of doubt, nothing in this Clause
19.14 shall prevent any Obligor, or any Subsidiary of any Obligor,
entering into transactions for the hedging of exposures arising
pursuant to the terms of any of the Finance Documents provided that the
counterpart of any such hedging is a Bank under the Facilities and the
terms of the hedging arrangements entered into are acceptable to the
Facility Agent (acting reasonably).
19.15 INVESTMENTS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, incorporate any company or enter into any merger or
consolidation with any business or person or acquire (by subscription
or otherwise) or invest in any business or company or any shares or
other securities (or any interest therein) other than:
(a) Cash Equivalent Investments; or
(b) members of the Group at the date of this Agreement which are
Obligors; or
(c) the incorporation by a member of the Group of a limited
liability company provided that (A) such company is
wholly-owned by a member (or members) of the Group and (B) the
Parent notifies the Facility Agent in writing at least one
month prior to any such incorporation; or
(d) the TIB Acquisition; or
(e) acquisitions permitted pursuant to Clause 19.33
(Acquisitions),
provided that the acquisition of the shares referred to in(d) and (e)
above shall be subject to compliance with Clause 17.3 (Security) and
19.32 (Obligor cover).
19.16 LOANS OUT
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, be the creditor in respect of any Borrowings, save
for:
(a) any Borrowings under paragraph (e) of the definition of
"BORROWINGS" in Clause 1.1 where trade credit is extended by
any member of the Group on normal commercial arm's length
terms and in the ordinary course of its business; or
(b) loans made by one member of the Group to another member of
the Group where:
(i) the loan is made by an Obligor to another Obligor; or
(ii) the loan is made by an Obligor to a Non-Obligor and
the recipient of the loan requires the funds to meet
its normal working capital requirements where the
aggregate amount of all such loans to all such
Non-Obligors at any time outstanding does not exceed
U.S.$7,500,000 (or its equivalent in other
currencies) and the aggregate amount lent (by all
members of the Group) at
<PAGE> 58
any time outstanding to any particular Non-Obligor
does not exceed U.S.$3,000,000 (or its equivalent in
other currencies); or
(iii) loans by a Non-Obligor to any member of the Group,
provided that, if requested by the Facility Agent, the Parent
will procure that in respect of any such loans or series of
loans between the same parties in an aggregate amount of
U.S.$1,000,000 (or its equivalent in other currencies) or more
security in favour of the Security Agent (in form and
substance reasonably satisfactory to the Security Agent) on
behalf of the Banks is granted over such loan(s); or
(c) loans made by any member of the Group to the employees of the
Group in an aggregate amount for the Group as a whole at any
time outstanding not exceeding U.S.$500,000 (or its equivalent
in other currencies); or
(d) counter-indemnity claims against another member of the Group
in respect of any guarantee or indemnity given by a member of
the Group issued to any person in respect of the obligations
or liabilities of such other member of the Group and which is
permitted pursuant to Clause 19.12 (Third party guarantees);
or
(e) Borrowings (not being loans to another member of the Group)
not otherwise permitted pursuant to paragraphs (a), (b), (c)
or (d) in an aggregate amount for the Group as a whole at any
time outstanding not exceeding U.S.$1,500,000 (or its
equivalent in other currencies).
19.17 DIVIDENDS
The Parent will not declare, make or pay any dividend (or interest on
any unpaid dividend), charge, fee or other distribution (whether in
cash or in kind) on or in respect of any of its Shares, or any other
shares in its capital or repay or distribute any share premium account,
until all amounts payable and all liabilities (actual or contingent)
pursuant to the Finance Documents have been repaid and or satisfied in
full.
19.18 SHARE CAPITAL
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, (i) redeem, repurchase, defease, retire or repay any
of its share capital or capital stock, or resolve to do so, or (ii)
issue any shares or capital stock which by their terms are redeemable
prior to the date falling one year after the Final Maturity Date, or
(iii) issue any share capital to any person other than to another
member of the Group, save that the Parent may issue (A) capital stock
of a type substantially similar to any class of its stock in issue at
the Signing Date which is subscribed for in full in cash and in respect
of which no dividend or distribution is payable while any amount is
outstanding under the Finance Documents, (B) capital stock in
accordance with bona fide employee stock option agreements entered into
on terms normal for such arrangements and (C) capital stock issued for
the purpose of an Acquisition permitted pursuant to Clause 19.33
(Acquisitions) or in relation to the TIB Acquisition on the terms set
out in the Prospectus provided that such issue does not cause a breach
of Clause 21.1(m) (Control).
<PAGE> 59
19.19 INTELLECTUAL PROPERTY RIGHTS
Each Obligor will, and will procure that each of its Subsidiaries will:
(a) (other than in respect of Excluded Intellectual Property
Rights) make such registrations and pay such fees and other
amounts as are necessary to keep those registered Intellectual
Property Rights which are material to the business of such
Obligor or the Group taken as a whole and to record its
interest in those Intellectual Property Rights;
(b) take such steps as are necessary and commercially reasonable
(including, without limitation, the institution of legal
proceedings) to prevent third parties infringing those
Intellectual Property Rights referred to in paragraph (a)
above; and
(c) not assign, transfer or enter into licence arrangements in
respect of those rights save for (I) licence arrangements
entered into with members of the Group for so long as they
remain members of the Group, (II) licence arrangements entered
into on normal commercial terms and in the ordinary course of
its business, and (III) the arrangements in place at the date
hereof in respect of the Excluded Intellectual Property
Rights.
19.20 ENVIRONMENTAL MATTERS
Each Obligor will and will procure that each of its Subsidiaries will:
(a) obtain all requisite Environmental Licences and comply with
(A) the terms and conditions of all Environmental Licences
applicable to it, and (B) all other applicable Environmental
Law, where in any such case failure to obtain or comply would
have a Material Adverse Effect; and
(b) promptly upon receipt of the same, notify the Facility Agent
of any claim, notice or other communication served on it in
respect of any alleged breach of or corrective or remedial
obligation or liability under any Environmental Law which
would, if substantiated, have a Material Adverse Effect; and
(c) indemnify each Finance Party, each receiver appointed under
any Security Document and their respective officers,
employees, agents and delegates (together the "INDEMNIFIED
PARTIES") against any cost or expense suffered or incurred by
them (except if caused by their own negligence) which:
(i) arises by virtue of any actual or alleged breach of
any Environmental Law (whether by any Obligor, an
Indemnified Party or any other person); or
(ii) arises by virtue of the release or threatened release
of, or exposure to, any Dangerous Substance stored or
handled upon, transported from, or otherwise
associated with, the past or present facilities or
operations of any Obligor or Group member;
and which would not have arisen if the Finance Documents or
any of them had not been executed.
<PAGE> 60
19.21 INSURANCE
(a) Each Obligor will, and will procure that each of its Subsidiaries will,
insure and keep insured all its property and assets of an insurable
nature and which are customarily insured (either generally or by
companies carrying on a similar business) against loss or damage by
fire and other risks normally insured against by persons carrying on
the same class of business as that carried on by it.
(b) Without prejudice to paragraph (a) above, the Parent will, or will
procure that members of the Group will, effect and maintain insurance
against business interruption, loss of profits, product liability,
professional indemnity, pollution and public liability covering all
members of the Group.
(c) Each Obligor will, and will procure that each of its Subsidiaries will,
promptly pay all premiums and do all other things necessary to keep on
foot the insurances required to be taken out and maintained by it
pursuant to paragraphs (a) and (b) above and will procure that (except
for public liability, employers liability and professional indemnity
insurances) all of the insurance policies required to be taken out and
maintained by it pursuant to paragraphs (a) and (b) above shall contain
loss payee provisions reasonably acceptable to the Security Agent
noting the Security Agent's interest thereon and naming the Security
Agent as the payee.
(d) The Parent will promptly supply to the Facility Agent on request copies
of each insurance policy required to be taken out and maintained by any
member of the Group pursuant to this Clause 19.21 and the Obligors will
procure that the insurer in the case of each such policy undertakes to
the Facility Agent to notify the Facility Agent should any renewal fee
or other sum payable by any member of the Group not be paid when due.
19.22 CHANGE OF BUSINESS
No Obligor will, and each Obligor will procure that no member of the
Group will, make any substantial change in the nature of its respective
business as conducted at the Closing Date which would result in a
material change to the nature of the business carried on by the Group
as a whole.
19.23 INTER-COMPANY DEBT
Each Obligor will procure that, unless the borrower in respect of such
Borrowings has sufficient readily available cash to pay the sum due or
demanded, any member of the Group which is the creditor in respect of
any Borrowings by any other member of the Group shall take no action to
cause such Borrowings to become due or to be paid.
19.24 ARM'S-LENGTH TERMS
Unless otherwise expressly permitted by this Agreement, no Obligor
will, and each Obligor will procure that none of its Subsidiaries will,
enter into any material transaction with any person if it is otherwise
prohibited by this Agreement and, if not, only otherwise than on
arm's-length terms in the ordinary course of trade.
<PAGE> 61
19.25 COMPLIANCE WITH LAWS
Each Obligor will, and will procure that each of its Subsidiaries will,
comply in all material respects with all applicable laws and
regulations of any governmental authority, whether domestic or foreign
having jurisdiction over it or any of its assets, where failure to
comply with any such laws or regulations would have a Material Adverse
Effect and will obtain and promptly renew from time to time, and if so
requested promptly furnish certified copies to the Facility Agent of
all material authorisations which may be required under any applicable
law or regulation to enable each Obligor to perform its respective
obligations under the Finance Documents or required for the validity or
enforceability of such Finance Documents or of any security provided
for thereby.
19.26 ACCESS
Upon reasonable notice being given by the Facility Agent, each Obligor
will procure that any one or more representatives of the Facility Agent
and/or accountants or other professional advisers appointed by the
Facility Agent be allowed to have access during normal business hours
to the assets, books and records of such Obligor and its Subsidiaries
and to inspect the same, provided that is shall not be obliged to
disclose any information which would cause it to be in breach of any
undertaking or obligation of confidentiality owed to a third party and
where it has taken all reasonable steps to secure the release of any
such confidentiality undertaking or obligation.
19.27 PENSION SCHEMES AND TAX ALLOWANCES
The Parent will if requested by the Facility Agent deliver to the
Facility Agent at intervals of no more than 3 calendar years, and in
any event at such time as those reports are prepared in order to comply
with then current statutory or auditing requirements, actuarial reports
in relation to any and all defined benefit pension schemes for the time
being operated by members of the Group, and will ensure that all such
pension schemes (which, with respect to the Plans, shall only include
those Plans that are pension Plans) are fully funded based on
reasonable actuarial assumptions.
19.28 JOINT VENTURES
Each Obligor will not, and will procure that none of its Subsidiaries
will, enter into or acquire any interest in any joint venture,
partnership or similar arrangement with any person (not being another
member of the Group) without the prior written consent of the Majority
Banks, where the aggregate investment whether by acquisition of an
ownership interest therein, the making of loans to such entity, the
guaranteeing of the obligations of such entity, transferring assets to
such entity or assuming the liabilities of or in respect of it (the
aggregate of such investments being the "JOINT VENTURE Investment") of
members of the Group in all joint ventures, partnerships and similar
arrangements would as a result exceed U.S.$5,000,000.
19.29 ERISA
Each U.S. Obligor will not, and will procure that none of its ERISA
Affiliates will (a) fail to make payment when due of all amounts due as
a contribution to any Plan, or (b) engage in any transaction in
connection with which any U.S. Obligor could be subjected to either a
civil penalty assessed pursuant to ERISA, a tax imposed by section 4975
of the IRC or breach of fiduciary duty liability damages if, in any
such case, such penalty or tax or such liability, or
<PAGE> 62
the failure to make such payment, or the existence of that deficiency,
as the case may be, would, or is reasonably likely to, have a Material
Adverse Effect.
19.30 COMPLIANCE WITH MARGIN STOCK REGULATION
Each U.S. Obligor shall not, and shall procure that its Subsidiaries
shall not:
(a) (i) sell, carry, pledge or otherwise dispose of any
margin stock ("MARGIN STOCK") within the meaning of
Regulation U of the Board of Governors of the Federal
Reserve System of the United States, as in effect
from time to time ("REGULATION U"), now owned or
acquired after the date of this Agreement; or
(ii) incur any Borrowings directly or indirectly secured
(within the meaning of Regulation U) by any Margin
Stock;
if such transaction would cause any of the Advances or any
part thereof to be in violation of Regulation U, or Regulation
X of the Board of Governors of the Federal Reserve System of
the United States, as in effect from time to time ("REGULATION
X");
(b) use the proceeds of any Advance, directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of
purchasing or carrying any Margin Stock or for the purpose of
maintaining, reducing or retiring any indebtedness which was
originally incurred to purchase or carry any stock that is
currently a Margin Stock or for any other purpose which might
constitute any of the Facility or Advances or this Agreement a
"purpose credit" within the meaning of Regulation U or
Regulation X. No Obligor and no agent acting on its behalf
will take or has taken any action which might cause this
Agreement or the Advances to violate Regulation U or
Regulation X or any other regulation of the Board of Governors
of the Federal Reserve System.
19.31 UCC FILINGS
Each U.S. Obligor at its own expense will make and renew promptly, and
in any event in the case of renewal before any UCC filing relating to
any Finance Document expires, all UCC filings relating to any Finance
Document reasonably required by the Facility Agent and will pay all
applicable fees.
19.32 OBLIGOR COVER
The Parent shall procure that:
(a) in relation to each Ratio Period, (as defined in Clause 20.3
(Periods)) the Obligors shall, in aggregate, account for at
least 80 per cent. of Consolidated EBITDA (as defined in
Clause 20.1 (Financial Definitions)) and have, in aggregate,
80 per cent. or more of the consolidated gross assets of the
Group; and
(b) on the Signing Date each Obligor as set out in Schedule 1 Part
II will execute a U.K. or U.S., as the case may be, general
security charge (in the agreed form) in favour of the Security
Agent.
<PAGE> 63
19.33 ACQUISITIONS
Save for the TIB Acquisition, the Parent will not, and will procure
that no member of the Group will make any Acquisition or series of
Acquisitions for Non-Equity Consideration (which shall include all
deferred consideration) except:
(i) the acquisition of any one or more of the franchises created
by the Target Group prior to the Signing Date provided that
the total consideration for such Acquisition or series of
Acquisitions does not exceed US$20,000,000 in aggregate during
the life of the Facility; or
(ii) an Acquisition or series of Acquisitions where the aggregate
consideration does not exceed US$15,000,000 in any one
financial year, provided that no Acquisition(s) will be made
of any business or company unless it carries on substantially
the same business as the Parent.
19.34 AMENDMENTS TO DOCUMENTS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will (i) amend, supplement, supersede or waive (A) any
term of the Transaction Documents or (B) (in the case of an Obligor or
a company over whose shares the Banks have a charge) its memorandum or
articles of association or other constitutional document without the
consent of the Majority Banks (not to be unreasonably delayed or
withheld), or (ii) enter into any agreements or arrangements with the
holders of any shares in the capital of the Parent, in any way which in
either such case would be likely materially and adversely to affect the
interests of the Banks under the Finance Documents (provided that if
any such undertaking would not be enforceable against any Obligor it
shall not be given by that Obligor).
20. FINANCIAL COVENANTS
20.1 FINANCIAL DEFINITIONS
(a) In this Agreement:
"BALANCE SHEET"
means, at any time, the latest published audited or unaudited
consolidated balance sheet of the Group.
"CONSOLIDATED EBIT" for any period means the profit of the Group for
such period:
(1) BEFORE TAKING INTO ACCOUNT all extraordinary items (whether
positive or negative) but AFTER TAKING INTO ACCOUNT all
exceptional items (whether positive or negative);
(2) BEFORE DEDUCTING advanced corporation tax, mainstream
corporation tax and their equivalents in any relevant
jurisdiction;
(3) BEFORE TAKING INTO ACCOUNT Interest accrued as an obligation
of or owed to any member of the Group, in each case whether or
not paid, deferred or capitalised during such period; and
<PAGE> 64
(4) AFTER DEDUCTING any gain over book value arising in favour of
the Group on the sale, lease or other disposal of any asset
(other than on the sale of trading stock) during such period
and any gain arising on revaluation of any asset during such
period, in each case to the extent that it would otherwise be
taken into account.
"CONSOLIDATED EBITDA" for any period means Consolidated EBIT for such
period before any amortisation or depreciation.
"CONSOLIDATED NET INTEREST PAYABLE" for any period means the Interest
accrued during such period as an obligation of any member or members of
the Group (whether or not paid or capitalised during or deferred for
payment after such period) and after taking into account Interest
receivable (net of Tax) by any member of the Group on any Borrowings
made available by such member of the Group which is not more than 90
days overdue, adjusted to take account of any amount constituting
Interest receivable by any members of the Group (after deducting all
Taxes applicable thereto) under interest rate and/or currency hedging
agreements or instruments under which all parties are in compliance
with their material obligations.
"CONSOLIDATED TOTAL BORROWINGS" means at any time the aggregate at that
time of the Borrowings of the members of the Group from sources
external to the Group (less any cash balances held by any member of the
Group that are freely convertible and transferable free of any
encumbrances (other than Permitted Encumbrances in respect of
Borrowings), all as determined (subject only as may be required in
order to reflect the express inclusion or exclusion of items as
specified herein and/or in the definition of Borrowings in Clause 1.1
(Definitions)) in accordance with the Applicable Accounting Principles
and, where the calculation is being made as at the end of any
Accounting Period for which a Balance Sheet of the Group has been or is
required to be delivered to the Facility Agent hereunder, determined
from that Balance Sheet.
20.2 FINANCIAL COVENANTS
The Parent shall procure that:
(a) CONSOLIDATED EBITDA TO CONSOLIDATED NET INTEREST PAYABLE:
Consolidated EBITDA for the Ratio Periods ending on the test
dates (each a "TEST DATE") specified in the table below, shall
not be less than Y times Consolidated Net Interest Payable for
such period, where Y has the value set opposite such Test
Date:
TEST DATE (BEFORE ANY ADJUSTMENT) Y
30th June, 2000 4.5
31st December, 2000 4.5
30th June, 2001 5.5
31st December, 2001 7
30th June, 2002 7
<PAGE> 65
(b) CONSOLIDATED TOTAL BORROWINGS TO CONSOLIDATED EBITDA:
The ratio of Consolidated Total Borrowings to Consolidated
EBITDA will not exceed 3.25:1 (applicable at all times but
tested semi-annually).
20.3 PERIODS
The first Test Date for the financial covenants specified in this
Clause 20 will be on the annual Accounting Period ending 30th June,
2000. Each subsequent test date will be on 31st December and 30th June
of each year until the Final Maturity Date. The financial covenants
will be calculated using data for the period (each a "RATIO PERIOD")
ending on each Test Date and beginning 12 months before the relevant
test date.
20.4 INFORMATION
All information required for calculation of the financial ratios and
testing of other covenants set out in this Clause 20 will be extracted
from figures appearing in the audited consolidated Accounts of the
Group for any financial year and the unaudited quarterly consolidated
management accounts of the Group as the case may be, delivered to the
Facility Agent under paragraph (a)(i) and (b) of Clause 19.2 (Financial
Information).
21. DEFAULT
21.1 EVENTS OF DEFAULT
Each of the events set out in this Clause 21.1 is an Event of Default
(whether or not caused by any reason whatsoever outside the control of
any Obligor or any other person):
(a) NON-PAYMENT: an Obligor does not pay on the due date any
amount payable by it under any Finance Document at the place
and in the funds and currency in which it is expressed to be
payable unless the Facility Agent is satisfied that the
failure to pay is due solely to technical or administrative
delays in the transmission of funds and the relevant amount is
paid in full within 3 Business Days of the due date; or
(b) BREACH OF OTHER OBLIGATIONS: an Obligor does not comply in any
material respect with any provision of:
(i) Clauses 19.6 (Negative Pledge), 19.7 (Transactions
similar to security), 19.8 (Disposals), 19.15
(Investments), 19.17 (Dividends), 19.18 (Share
Capital), 19.32 (Guarantor cover), 19.33
(Acquisitions) or 20.2 (Financial Covenants); or
(ii) any Finance Document (other than a provision referred
to in paragraphs (a) or (b)(i) above) and, if such
default is, in the reasonable opinion of the Facility
Agent, capable of remedy within such period, within
21 days after the earlier of the relevant Obligor
becoming aware of such default and receipt by the
relevant Obligor of written notice from the Facility
Agent requiring the failure to be remedied, such
Obligor shall have failed to cure such default
provided that such Obligor shall not have any such 21
day remedy period where, in the Facility Agent's
reasonable opinion, it may be materially
<PAGE> 66
prejudicial to the interests of the Banks under the
Finance Documents to wait to determine whether or not
such Obligor would remedy any such failure; or
(c) MISREPRESENTATION: a representation, warranty or statement
made or repeated by or on behalf of any Obligor, in any
Finance Document or in any certificate or statement delivered
by or on behalf of any Obligor under any Finance Document, is
incorrect in any respect which in the reasonable opinion of
the Facility Agent is material when made or deemed to be made
or repeated by reference to the facts and circumstances then
subsisting and, if the facts and circumstances causing such
misrepresentation are in the reasonable opinion of the
Facility Agent capable of remedy within such period, within 14
days after the earlier of the relevant Obligor becoming aware
of such misrepresentation and receipt by such Obligor of
written notice from the Facility Agent requiring the facts and
circumstances causing such misrepresentation to be remedied,
such Obligor shall have failed to remedy such facts and
circumstances; or
(d) CROSS-DEFAULT:
(i) any Borrowings of any members of the Group (taken
together) aggregating U.S.$1,000,000 (or its
equivalent in other currencies) or more at any one
time outstanding become (or become capable of being
declared (but only while it remains so capable of
being declared)) due and payable or due for
redemption before their normal maturity date or are
placed on demand in each such case by reason of the
occurrence of an event of default (howsoever
characterised) or any event having the same effect,
unless the obligation to pay such Borrowings is being
contested in good faith by the relevant member of the
Group by appropriate proceedings and an independent
legal opinion addressed to the relevant member of the
Group confirms that such member of the Group is
likely to be successful in such proceedings; or
(ii) any Borrowings of any members of the Group (taken
together) aggregating U.S.$1,000,000 (or its
equivalent in other currencies) or more are not paid
when due (whether falling due by demand, at scheduled
maturity or otherwise) or within any originally
applicable grace period provided for in the document
evidencing or constituting those Borrowings, unless
the obligation to pay such Borrowings is being
contested in good faith by the relevant member of the
Group by appropriate proceedings and an independent
legal opinion addressed to the relevant member of the
Group confirms that such member of the Group is
likely to be successful in such proceedings; or
(iii) if funds are outstanding in respect thereof, any
commitment for or underwriting of any facility for
Borrowings of any members of the Group (taken
together) aggregating U.S.$1,000,000 (or its
equivalent in other currencies) is cancelled or
suspended by the provider of that facility by reason
of the occurrence of an event of default (howsoever
characterised); or
(e) INVALIDITY:
(i) any of the Finance Documents ceases to be in full
force and effect in any material respect or, subject
to the Reservations, ceases to constitute the legal,
<PAGE> 67
valid and binding obligation of any Obligor party to
it or, in the case of any Security Document, subject
to the Reservations, fails to provide legal, valid
and enforceable security in favour of the Security
Agent and the Banks over the assets over which
security is intended to be given by that Security
Document, in each case in a manner and to an extent
reasonably considered by the Majority Banks to be
materially adverse to their interests under the
Finance Documents; or
(ii) it is unlawful for any Obligor to perform any of its
obligations under any of the Finance Documents; or
(iii) any Obligor alleges in writing that any Finance
Document is ineffective or invalid; or
(f) INSOLVENCY:
(i) any Obligor or any Material Subsidiary is, or is
deemed or declared for the purposes of any law to be,
unable to pay its debts as they fall due or to be
insolvent, or admits in writing its inability to pay
its debts as they fall due; or
(ii) any Obligor or any Material Subsidiary suspends
making payments on all or any class of its debts or
announces an intention to do so, or a moratorium is
declared in respect of any of its indebtedness; or
(iii) an Obligor or any Material Subsidiary by reason of
financial difficulties, begins negotiations with its
creditors generally with a view to the readjustment
or rescheduling of any of its indebtedness; or
(g) INSOLVENCY PROCEEDINGS:
(i) any step (including petition, proposal or convening a
meeting) is taken with a view to a composition,
assignment or arrangement with the creditors (or any
class of them) of any Obligor; or
(ii) a meeting of the board of directors or shareholders
of any Obligor or any Material Subsidiary is convened
for the purpose of considering any resolution for (or
to petition for) its winding-up or its administration
or any such resolution is passed; or
(iii) any person presents a petition for the winding-up or
for the administration of, any Obligor or any
Material Subsidiary (not being a frivolous or
vexatious petition); or
(iv) any order for the winding-up or administration of any
Obligor or any Material Subsidiary is made; or
(v) any other step (including petition, resolution,
proposal or convening a meeting) is taken with a view
to the rehabilitation, administration, custodianship,
liquidation, winding-up or dissolution of any Obligor
or any
<PAGE> 68
Material Subsidiary or any other insolvency
proceedings involving any such person,
provided that this Clause 21.1(g) shall not apply to:
(a) any such action relating to a solvent reconstruction,
amalgamation, reorganisation or merger of such
Obligor save where the Facility Agent (acting on the
instructions of the Majority Banks) believes that
such action will reasonably be expected to have an
adverse effect on the ability of that Obligor to
comply with its obligations under the Facility
Documents.
(b) any such action which is frivolous or vexatious and
which such Obligor is contesting in good faith on
reasonable grounds and in any event is discharged or
dismissed within 21 days or in respect of which the
Majority Banks are satisfied that the ability of that
Obligor to comply with its obligations under the
Finance Documents will not be materially and
adversely affected.
(h) APPOINTMENT OF RECEIVERS AND MANAGERS:
(i) any liquidator, trustee in bankruptcy, judicial
custodian, compulsory manager, receiver,
administrative receiver, administrator or the like is
appointed in respect of any Obligor or any Material
Subsidiary or any part of its assets; or
(ii) the directors of any Obligor or any Material
Subsidiary requests the appointment of a liquidator,
trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver,
administrator or the like in respect of any Obligor
or Material Subsidiary or their respective assets; or
(iii) any other steps are taken to enforce any Encumbrance
over any part of the assets of any Obligor or any
Material Subsidiary, save where that Obligor or such
Material Subsidiary is, in good faith, contesting
such enforcement by appropriate proceedings and the
Majority Banks acting reasonably are satisfied that
the ability of any Obligor or any Material Subsidiary
to comply with its obligations under any Finance
Document will not be materially and adversely
affected; or
(i) CREDITORS' PROCESS: any attachment, sequestration, distress or
execution is made or ordered in respect of any assets of any
member or members of the Group having an aggregate value of
U.S.$ 1,500,000 (or its equivalent in other currencies), and
is not discharged within 7 days; or
(j) U.S. BANKRUPTCY: any Obligor or any Material Subsidiary shall
commence a voluntary case under the U.S. Bankruptcy Code, or
an involuntary case is commenced under the U.S. Bankruptcy
Code against such a member of the Group and the petition is
not controverted within 7 days and is not dismissed within 30
days, after commencement of the case, or a custodian,
receiver, trustee or similar officer is appointed for, or
takes charge of, all or substantially all of the property of
any Obligor or any Material Subsidiary; or
<PAGE> 69
(k) ANALOGOUS PROCEEDINGS:
(i) there occurs, in relation to any Non-Obligor which is
not a Material Subsidiary (or any of its assets) any
of the events referred to in Clauses 21.1 (Events of
Default) paragraphs (f) to (j) (inclusive) (or in any
jurisdiction to which such person or any of its
assets is subject, any event which, in the reasonable
opinion of the Majority Banks, is analogous to any of
those mentioned in Clauses 21.1 (Events of Default)
paragraphs (f) to (j) (inclusive)) (ignoring for
these purposes the requirement to be an Obligor
and/or a Material Subsidiary in any such Clause)
where:
(A) such event would have a Material Adverse
Effect; or
(B) the aggregate of the gross assets, pre-tax
profits or turnover (excluding value added
tax or sales tax) of all such persons in
respect of which any such events have
occurred in any twelve month period is 5% or
more of (I) the gross assets of the Group,
(II) Consolidated EBIT of the Group, or
(III) the aggregate consolidated sales of
the Group to third parties (excluding any
value added tax or sales tax) for such
period, in each case calculated in
accordance with the Applicable Accounting
Principles and by reference to the latest
audited or management accounts of the
relevant company and the latest quarterly or
audited consolidated Accounts of the Group
delivered pursuant to Clause 19.2 (Financial
Information); or
(ii) there occurs, in relation to any Obligor or a
Material Subsidiary, in any jurisdiction to which it
or any of its assets are subject, any event which, in
the opinion of the Majority Banks, is analogous to
any of those mentioned in Clauses 21.1 (Events of
Default) paragraphs (f) to (j) (inclusive); or
(l) OWNERSHIP OF THE OBLIGORS: any Obligor (other than the Parent)
is not or ceases to be a wholly-owned Subsidiary of the
Parent; or
(m) CONTROL: any single person, or group of persons acting in
concert (as defined in the City Code of Takeovers and
Mergers), acquires control (as defined in Section 416 of the
Income and Corporation Taxes Act 1988) of the Parent after the
date of this Agreement; or
(n) PROCEEDINGS: there shall occur any litigation, arbitration,
administrative, regulatory or other proceedings or enquiry
(including without limitation, any such by any monopoly,
anti-trust or competition authority or commission, or any
equivalent body in the European Commission or any division of
any thereof or authority deriving power from any thereof)
concerning or arising in consequence of any of the Transaction
Documents and/or the implementation of any matter or
transaction provided for in the Finance Documents and the same
has or is reasonably likely to have a Material Adverse Effect;
or
(o) AUDIT QUALIFICATION: the Auditors qualify their report on any
audited consolidated Accounts of the Group in a manner which,
in the reasonable opinion of the Majority
<PAGE> 70
Banks, is material in the context of the Finance Documents and
the transactions contemplated thereby; or
(p) ERISA: any U.S. Obligor or any Subsidiary of a U.S. Obligor or
any ERISA Affiliate has incurred or is likely to incur a
liability to or on account of a Plan under Section 409,
502(i), 502(1), 4041, 4042, 4062, 4063, 4064, 4068, 4069, 4201
or 4204 of ERISA or Section 4971 or 4975 of the Code, or any
U.S. Obligor or any Subsidiary has incurred or is likely to
incur liabilities pursuant to one or more employee welfare
benefit plans (as defined in Section 3(1) of ERISA) which
provide benefits to retired or terminated employees (other
than as required by Part 6 of Subtitle B of Title I of ERISA)
or employee pension benefit plans (as defined in Section 3(2)
of ERISA), and there shall result from any such event or
events the imposition of a lien, the granting of a security
interest, or a liability or a material risk of incurring a
liability, which lien, security interest or liability (or the
enforcement thereof) is reasonably likely to have a Material
Adverse Effect; or
(q) MATERIAL ADVERSE CHANGE: any event or series of events occurs
which has, or is reasonably likely to have, a Material Adverse
Effect; or
(r) GETTY TRADEMARKS: the members of the Group shall cease for any
reason to be entitled to use the name Getty or any trademark
incorporating such name or the terms on which they are so
entitled shall be altered in any respect materially adverse to
the members of the Group.
(s) SUBORDINATED LOAN NOTES: if the principal of any Subordinated
Loan Note is repaid or redeemed out of Non-equity
Consideration prior to the Final Maturity Date.
21.2 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
subsisting the Facility Agent may, and shall if so directed by the
Majority Banks, by notice to the Parent:
(a) declare that an Event of Default has occurred; and/or
(b) cancel the Total Commitments; and/or
(c) declare that all or part of the Advances to some or all of the
Borrowers be payable on demand, whereupon they shall
immediately become payable on demand by the Facility Agent
(and if any such demand is subsequently made those Advances,
together with accrued interest and all other amounts accrued
under this Agreement, shall be immediately due and payable);
and/or
(d) declare that all or part of the Advances to some or all of the
Borrowers, together with accrued interest, and all other
amounts accrued under this Agreement be immediately due and
payable, whereupon they shall become immediately due and
payable,
provided that no action or determination by any of the Finance Parties
shall be required in respect of any or all of the obligations and
liabilities (whether actual or contingent) of any Obligor upon or at
any time after the occurrence of an Event of Default specified in
Clause 21.1 (Events of Default) paragraphs (f) to (h) (inclusive) and
(j) to (k)(ii) (inclusive) in
<PAGE> 71
respect of the Parent or any U.S. Obligor which is a Material
Subsidiary and on the occurrence of any such Event of Default all of
the obligations and liabilities of the Obligors shall become
automatically and immediately due and payable and, provided further
that the Facility Agent (on the instructions of the Majority Banks) can
by notice to the Obligors rescind any such acceleration in whole or in
part.
22. THE AGENTS AND THE ARRANGER
22.1 APPOINTMENT AND DUTIES OF THE AGENTS
Each Finance Party irrevocably appoints each Agent to act as its agent
under and in connection with the Finance Documents, and irrevocably
authorises each Agent on its behalf (a) to execute on its behalf such
of the Finance Documents which are expressed by this Agreement to be
executed by such Agent on behalf of the Finance Parties, and (b) to
perform the duties and to exercise the rights, powers and discretions
that are specifically delegated to it under or in connection with the
Finance Documents, together with any other incidental rights, powers
and discretions. Each Agent shall have only those duties which are
expressly specified in this Agreement. Those duties are solely of a
mechanical and administrative nature.
22.2 ROLE OF THE ARRANGER
Except as otherwise provided in this Agreement, the Arranger has no
obligations of any kind to any other Party under or in connection with
any Finance Document.
22.3 RELATIONSHIP
The relationship between each Agent and the other Finance Parties is
that of agent and principal only. Nothing in this Agreement (other than
in relation to the Security Agent and the Security Documents)
constitutes any Agent as trustee or fiduciary for any other Party or
any other person and except where and to the extent otherwise stated in
this Agreement such Agent need not hold in trust any moneys paid to it
for a Party or be liable to account for interest on those moneys.
22.4 MAJORITY BANKS' DIRECTIONS
Each Agent will be fully protected if it acts in accordance with the
instructions of the Majority Banks in connection with the exercise of
any right, power or discretion or any matter not expressly provided for
in the Finance Documents. Any such instructions given by the Majority
Banks will be binding on all the Banks. In the absence of such
instructions each Agent may act as it considers to be in the best
interests of all the Banks.
22.5 DELEGATION
Each Agent may act under the Finance Documents through its personnel
and agents.
22.6 RESPONSIBILITY FOR DOCUMENTATION
Neither any Agent nor the Arranger is responsible to any other Party
for:
<PAGE> 72
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(b) the collectability of amounts payable under any Finance
Document; or
(c) the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document (or in
the Information Memorandum).
22.7 DEFAULT
(a) Neither Agent is obliged to monitor or enquire as to whether or not a
Default has occurred. Neither Agent will be deemed to have knowledge of
the occurrence of a Default. However, if an Agent receives notice from
a Party referring to this Agreement, describing the Default and stating
that the event is a Default, it shall promptly notify the Finance
Parties.
(b) Each Agent may require the receipt of security satisfactory to it,
whether by way of payment in advance or otherwise, against any
liability or loss which it may incur in taking any proceedings or
action arising out of or in connection with any Finance Document before
it commences these proceedings or takes that action.
22.8 EXONERATION
(a) Without limiting paragraph (b) below, no Agent will be liable to any
other Party for any action taken or not taken by it under or in
connection with any Finance Document, unless directly caused by its
gross negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee or
agent of any Agent in respect of any claim it might have against such
Agent or in respect of any act or omission of any kind (including gross
negligence or wilful misconduct) by that officer, employee or agent in
relation to any Finance Document.
22.9 RELIANCE
Each Agent may:
(a) rely on any notice or document believed by it to be genuine
and correct and to have been signed by, or with the authority
of, the proper person;
(b) rely on any statement made by a director or employee of any
person regarding any matters which may reasonably be assumed
to be within his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional
advisers selected by it (including those in such Agent's
employment and those representing a Party other than such
Agent).
22.10 CREDIT APPROVAL AND APPRAISAL
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Bank confirms that it:
<PAGE> 73
(a) has made its own independent investigation and assessment of
the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this
Agreement and has not relied exclusively on any information
provided to it by any Agent or the Arranger in connection with
any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
while any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
22.11 INFORMATION
(a) The Facility Agent shall promptly forward to the person concerned the
original or a copy of any document which is delivered to the Facility
Agent by a Party for that person.
(b) Except where this Agreement specifically provides otherwise, the
Facility Agent is not obliged to review or check the accuracy or
completeness of any document it forwards to another Party.
(c) Except as provided above, neither any Agent nor the Arranger has any
duty:
(i) either initially or on a continuing basis to provide any
Finance Party with any credit or other information concerning
the financial condition or affairs of any Obligor or any
related entity of any Obligor whether coming into its
possession or that of any of its related entities before, on
or after the date of this Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance
with this Agreement, to request any certificates or other
documents from any Obligor.
22.12 THE AGENTS AND THE ARRANGER INDIVIDUALLY
(a) If it is also a Bank, each Agent and the Arranger has the same rights
and powers under this Agreement as any other Bank and may exercise
those rights and powers as though it were not an Agent or the Arranger.
(b) Each Agent and the Arranger may:
(i) carry on any business with any Obligor or its related
entities;
(ii) act as agent or trustee for, or in relation to any
financing involving, any Obligor or its related entities;
and
(iii) retain any fees, profits or remuneration in connection with
its activities under this Agreement or in relation to any of
the foregoing.
22.13 INDEMNITIES
(a) Without limiting the liability of any Obligor under the Finance
Documents, each Bank shall forthwith on demand indemnify each Agent for
its proportion of any liability or loss incurred by such Agent in any
way relating to or arising out of its acting as the Facility Agent or
the Security Agent, as the case may be, except to the extent that the
liability or loss arises directly from such Agent's gross negligence or
wilful misconduct.
<PAGE> 74
(b) A Bank's proportion of the liability or loss set out in paragraph (a)
above is the proportion which its participation in the Advances (if
any) bears to all the Advances on the date of the demand. If, however,
there are no Advances outstanding on the date of demand, then the
proportion will be the proportion which its Commitment bears to the
Total Commitments at the date of demand or, if the Total Commitments
have been cancelled, bore to the Total Commitments immediately before
being cancelled.
(c) The Parent shall forthwith on demand reimburse each Bank for any
payment made by it under paragraph (a) above.
22.14 COMPLIANCE
(a) Each Agent may refrain from doing anything which might, in its opinion,
constitute a breach of any law or regulation or be otherwise actionable
at the suit of any person, and may do anything which, in its opinion,
is necessary or desirable to comply with any law or regulation of any
jurisdiction.
(b) Without limiting paragraph (a) above, neither Agent need disclose any
information relating to any Obligor or any of its related entities if
the disclosure might, in the opinion of such Agent, constitute a breach
of any law or regulation or any duty of secrecy or confidentiality or
be otherwise actionable at the suit of any person.
(c) In acting as Facility Agent and/or Security Agent for the Banks, the
Facility Agent's and Security Agent's agency division shall be treated
as a separate entity from any other of its divisions or departments
and, notwithstanding the foregoing provisions of this Clause 22, in the
event that Facility Agent or the Security Agent should act for any
member of the Group in any capacity in relation to any other matter,
any information given by such member of the Group to the Facility Agent
or the Security Agent in such other capacity may be treated as
confidential by the Facility Agent or the Security Agent (as the case
may be).
22.15 RESIGNATION
(a) Notwithstanding Clause 22.1 (Appointment and duties of the Agents),
each Agent may resign (after consultation with the Parent) by giving
notice to the Banks and the Parent and may be removed by the Majority
Banks giving notice to such Agent and the Parent. In that event the
Majority Banks, after consultation with the Parent, may appoint a
successor (a "REPLACEMENT") for such Agent which shall be a reputable
and experienced bank acting and incorporated or having a branch in
England.
(b) If the Majority Banks have not, within 30 days after any such notice,
so appointed a Replacement which shall have accepted such appointment,
the retiring Agent, after consultation with the Parent, shall have the
right to appoint a Replacement which shall be a reputable and
experienced bank incorporated or having a branch in England.
(c) The resignation of the retiring Agent and the appointment of any
Replacement shall, subject to Clause 22.15(d) (below), both become
effective upon the Replacement notifying all the parties hereto in
writing that it accepts such appointment, whereupon the Replacement
shall succeed to the position of the retiring Agent and the term
"AGENT", "FACILITY AGENT" or "SECURITY AGENT" in all of the Finance
Documents shall include such Replacement where
<PAGE> 75
appropriate. This Clause 22 shall continue to benefit a retiring Agent
in respect of any action taken or omitted by it hereunder while it was
an Agent.
(d) The resignation or removal of a retiring Security Agent shall not
become effective until the Facility Agent is satisfied that all things
required to be done in order that the Security Documents or
replacements therefor shall provide for legal, valid and enforceable
security in favour of the replacement Security Agent have been done.
The Obligors shall take such action as may be necessary in order that
the Security Documents or replacements therefor shall provide for
legal, valid and enforceable security in favour of any replacement
Security Agent.
(e) The retiring Agent shall make available to the Replacement such
documents and records as the Replacement may reasonably request for the
purpose of performing its function as the Facility Agent or Security
Agent as the case may be.
22.16 SECURITY AGENT AS TRUSTEE
(a) The Security Agent in its capacity as trustee or otherwise:
(i) shall not be liable for any failure, omission, or defect in
perfecting the security constituted by any Security Document
or any security created thereby;
(ii) may accept without enquiry such title as any Obligor may have
to the property over which security is intended to be created
by any Security Document.
(b) Save where the Security Agent holds a legal mortgage over, or over an
interest in, real property or shares, the Security Agent in its
capacity as trustee or otherwise shall not be under any obligation to
hold any title deeds, Security Documents or any other documents in
connection with the property charged by any Security Document or any
other such security in its own possession or to take any steps to
protect or preserve the same. The Security Agent may permit the
relevant Obligor to retain all such title deeds and other documents in
its possession.
(c) Save as otherwise provided in the Security Documents, all moneys which
under the trusts herein or therein contained are received by the
Security Agent in its capacity as trustee or otherwise may be invested
in the name of or under the control of the Security Agent in any
investment for the time being authorised by English law for the
investment by trustees of trust money or in any other investments which
may be selected by the Security Agent with the consent of the Majority
Banks. Additionally, the same may be placed on deposit in the name of
or under the control of the Security Agent at such bank or institution
(including any Agent) and upon such terms as the Security Agent may
think fit. Any and all such monies and all interest thereon shall be
paid over to the Facility Agent forthwith upon demand by the Facility
Agent.
(d) Each Finance Party authorises, empowers and directs the Security Agent
(by itself or by such person(s) as it may nominate) to execute and
enforce the Security Documents as trustee or as otherwise provided (and
whether or not expressly in the Finance Parties' names) on its behalf.
<PAGE> 76
22.17 BANKS
(a) Each Agent may treat each Bank as a Bank, entitled to payments under
this Agreement and as acting through its Facility Office(s) until it
has received not less than 5 Business Days' notice from such Bank to
the contrary prior to the relevant payment.
(b) Each Bank represents to the Facility Agent that, in the case of a Bank
which is a Bank on the date of this Agreement, on the date of this
Agreement and, in the case of a Bank which becomes a Bank after the
date of this Agreement, on the date it becomes a Bank it is:
(i) either:
(A) not resident in the United Kingdom for United Kingdom
tax purposes; or
(B) a "bank" as defined in section 840A of the Income and
Corporation Taxes Act 1988 and resident in the United
Kingdom for United Kingdom tax purposes; and
(ii) beneficially entitled to the principal and interest payable
by the Facility Agent to it under this Agreement,
and shall forthwith notify the Facility Agent if either representation
ceases to be correct.
22.18 CHINESE WALL
In acting as Facility Agent or Arranger, the agency and syndications
division of each of the Facility Agent and the Arranger shall be
treated as a separate entity from its other divisions and departments.
Any information acquired at any time by the Facility Agent or the
Arranger otherwise than in the capacity of Agent or Arranger through
its agency and syndications division (whether as financial advisor to
any member of the Group or otherwise) may be treated as confidential by
the Facility Agent or Arranger and shall not be deemed to be
information possessed by the Facility Agent or Arranger in their
capacity as such. Each Finance Party acknowledges that the Facility
Agent and the Arranger may, now or in the future, be in possession of,
or provided with, information relating to the Obligors which has not or
will not be provided to the other Finance Parties. Each Finance Party
agrees that, except as expressly provided in this Agreement, neither
the Agent nor the Arranger will be under any obligation to provide, or
under any liability for failure to provide, any such information to the
other Finance Parties.
23. FEES
23.1 ARRANGEMENT FEE
The Parent shall pay to the Facility Agent on behalf of the Arranger a
front-end fee on the date and in the amount agreed in the letter of
even date herewith from the Facility Agent on behalf of the Arranger to
the Parent and counter-signed by the Parent. The front-end fee shall be
distributed by the Arranger among the Banks in the proportions agreed
between the Arranger and the Banks.
<PAGE> 77
23.2 COMMITMENT FEE
(a) The Parent shall pay to the Facility Agent for each Bank a commitment
fee in the currency in which the relevant Commitments are denominated
computed at the rate per annum referred to in Clause 8.5 (Applicable
Margin and commitment fee) on the daily unutilised balance of the
aggregate of that Bank's undrawn and available Commitment from time to
time during the Availability Period.
(b) Accrued commitment fee is payable quarterly in arrear with the first
payment due three months after the Signing Date and thereafter until
the Final Maturity Date. Commitment fee will start to accrue from the
Signing Date. Accrued commitment fee is also payable to the Facility
Agent for the relevant Bank(s) on the cancelled amount of any such
Bank's Commitment at the time the cancellation takes effect.
23.3 AGENCY FEES
The Parent shall pay to the Facility Agent for its own account the
agency fees on the dates and in the amounts agreed in the letter of
even date herewith from the Facility Agent to the Parent and
counter-signed by the Parent.
23.4 VAT
Any fee referred to in this Clause 23 (Fees) is exclusive of any value
added tax or any other similar Tax which might be chargeable in
connection with that fee. If any value added tax or other similar Tax
is so chargeable, it shall be paid by the relevant Obligor at the same
time as it pays the relevant fee.
24. EXPENSES
24.1 INITIAL AND SPECIAL COSTS
The Parent shall promptly on demand pay or procure that the other
Borrowers pay the Agents and the Arranger the amount of all reasonable
costs and expenses (including legal fees and expenses) incurred by any
of them in connection with:
(a) the negotiation, preparation, printing and execution of this
Agreement and any other Finance Document (including any
executed after the date of this Agreement) and the syndication
of the Facilities;
(b) any amendment, supplement, waiver, consent or suspension of
rights (or any proposal for any of the foregoing) requested by
or on behalf of an Obligor or, in the case of Clause 2.5
(Change of currency), the Facility Agent and relating to a
Finance Document; and
(c) any other matter, not of an ordinary administrative nature,
arising out of or in connection with a Finance Document,
together in each case with any applicable value added tax or other
similar Taxes.
<PAGE> 78
24.2 ENFORCEMENT COSTS
The Parent shall promptly on demand pay or procure that the other
Borrowers pay to each Finance Party the amount of all costs and
expenses (including legal fees and expenses) incurred by it:
(a) in connection with the enforcement of, or the protection or
preservation of any rights under, any Finance Document; or
(b) (in the case of the Facility Agent or the Security Agent only)
in investigating any Default,
together in each case with any applicable value added tax or other
similar Taxes.
While any Event of Default is continuing, the Parent shall promptly on
demand pay each Agent for the cost of the management time charged by
such Agent in connection with any additional administration of the
Finance Documents arising in consequence of such Event of Default.
24.3 STAMP DUTIES
The Parent shall pay and promptly on demand indemnify each Finance
Party against any liability it incurs in respect of any stamp,
registration and similar Tax which is or becomes payable in connection
with the entry into, registration, performance or enforcement of any
Finance Document.
25. INDEMNITIES
25.1 CURRENCY INDEMNITY
(a) If any amount payable by any Obligor under or in connection with any
Finance Document is received by any Finance Party in a currency (the
"PAYMENT CURRENCY") other than that agreed to be payable under that
Finance Document (the "AGREED CURRENCY"), whether as a result of any
judgement or order or the enforcement of the same, the liquidation of
such Obligor or otherwise and the amount produced by converting the
Payment Currency so received into the Agreed Currency at market rates
prevailing at or about the time of receipt of the Payment Currency is
less than the amount of the Agreed Currency due under that Finance
Document, then the Obligors shall, as an independent and additional
obligation, indemnify each Finance Party for the deficiency and any
loss sustained as a result.
(b) The indemnities set out in paragraph (a) above shall constitute
separate and independent obligations of each of the Obligors from their
other obligations under the Finance Documents and shall apply
irrespective of any indulgence granted by any Finance Party. The
Obligors shall pay the reasonable costs of making any conversion from
the Payment Currency to the Agreed Currency.
(c) Each Obligor waives any right it may have in any jurisdiction to pay
any amount under this Agreement in a currency other than that in which
it is expressed to be payable under that Finance Document.
<PAGE> 79
25.2 GENERAL INDEMNITIES
The Parent shall promptly on demand indemnify each Finance Party
against any loss or liability which that Finance Party incurs as a
consequence of:
(a) the occurrence of any Default;
(b) the operation of Clause 25.1 (Change of currency), Clause 21.2
(Acceleration) or Clause 31 (Pro rata sharing);
(c) any payment of principal of or interest on an Advance or of an
overdue amount being received otherwise than on its Maturity
Date; or
(d) (other than by reason of default by a Finance Party) an
Advance not being made after a Request has been delivered for
that Advance,
including any loss of Margin or other loss or expense on account of
funds borrowed, contracted for or utilised to fund any amount payable
under any Finance Document, any amount repaid or prepaid or any Advance
(provided that the loss or liability recoverable by any Finance Party
under paragraphs (c) or (d) shall not exceed the amount which such
Finance Party could claim if it had funded such Advance or overdue
amount on a matched basis in the London Interbank Eurocurrency Market).
26. EVIDENCE AND CALCULATIONS
26.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they relate.
26.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under this Agreement is, in the absence of manifest error, prima
facie evidence of the matters to which it relates.
26.3 CALCULATIONS
Interest (including any Reserve Asset Costs) and the fees payable under
Clause 23.2 (Commitment fee) accrue from day to day and are calculated
on the basis of the actual number of days elapsed and a year of 360
days or, in the case of interest payable on an amount denominated in
Sterling only, 365 days.
27. AMENDMENTS AND WAIVERS
27.1 PROCEDURE
(a) Subject to Clause 27.2 (Exceptions), if authorised by the Majority
Banks, the Facility Agent or (in the case of the Security Documents)
the Security Agent may waive or (with the consent of the Obligors'
Agent) amend or vary any term of the Finance Documents. Any such
waiver, amendment or variation so authorised and effected shall be
binding on all the Finance Parties
<PAGE> 80
and the Facility Agent (or Security Agent as the case may be) shall be
under no liability in respect of any such waiver, amendment or
variation. The Obligors' Agent and the other Obligors shall be entitled
to rely on any letter agreeing to any such waiver, amendment or
variation given by the Facility Agent or the Security Agent, as the
case may be, in their capacity as such, which the Obligors may take as
confirmation that the Facility Agent or the Security Agent, as the case
may be, has been duly authorised by the Majority Banks.
(b) The Facility Agent shall promptly notify the Obligors' Agent and the
other Finance Parties of any waiver, amendment or variation effected
under paragraph (a) above, and any such waiver, amendment or variation
shall be binding on all the Parties.
27.2 EXCEPTIONS
A waiver, amendment or variation which relates to:
(a) the definition of "MAJORITY BANKS" in Clause 1.1
(Definitions);
(b) an extension of the date for, or a decrease in an amount or
a change in the currency or waiver of, any payment under the
Finance Documents;
(c) a change in a Bank's Commitment (other than as expressly
contemplated by this Agreement) or an extension of the
Availability Period;
(d) the incorporation of Additional Borrowers and/or drawers or a
change in the Guarantors otherwise than in accordance with
Clauses 17.1 (Additional Borrowers) or 17.2 (Additional
Guarantors);
(e) a term of a Finance Document which expressly requires the
consent of each Bank;
(f) Clauses 6 (Repayment), 7 (Prepayment and Cancellation), 10.6
(Partial payments), 11 (Taxes), 36 (Governing Law) or this
Clause 27; or
(g) any material provision of any Security Document or any release
(not otherwise provided for in Clause 17.4 (Release of
Guarantors and security) or the relevant Security Document) of
any material asset charged by any of the Security Documents,
may not be effected without the consent of each Bank.
27.3 WAIVERS AND REMEDIES CUMULATIVE
The rights of each Finance Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the
general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
<PAGE> 81
28. CHANGES TO THE PARTIES
28.1 TRANSFERS BY OBLIGORS
No Obligor may assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under this Agreement.
28.2 TRANSFERS BY BANKS
(a) A Bank (the "EXISTING BANK") may at any time with the prior consent of
the Parent (not to be unreasonably withheld and such consent to be
deemed given within 5 Business Days of an Existing Bank's request)
assign, transfer or novate any of its rights and/or obligations under
this Agreement to another bank, trust, fund or financial institution
(the "NEW BANK") which is a Recognised Bank provided always that no
consent from the Parent will be required during the Primary Syndication
Period.
(b) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with Clause 28.3
(Procedure for novation); or
(ii) the New Bank confirms to the Facility Agent and the Parent
that it undertakes to be bound by the terms of the Finance
Documents as a Bank in form and substance satisfactory to the
Facility Agent. On the transfer becoming effective in this
manner the Existing Bank shall be relieved of its obligations
under the Finance Documents to the extent that they are
transferred to the New Bank.
(c) Nothing in this Agreement restricts the ability of a Bank to
sub-participate or sub-contract an obligation if that Bank remains
liable under this Agreement for that obligation.
(d) On each occasion an Existing Bank assigns, transfers or novates any of
its rights and/or obligations under this Agreement, the New Bank shall,
on the date the assignment, transfer and/or novation takes effect, pay
to the Facility Agent an administration fee of (pound)1,000.
(e) Neither an Existing Bank nor any other Finance Party is responsible to
a New Bank for:
(i) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance
Document or the financial condition of or the performance of
its obligations under the Finance Documents by any Obligor; or
(iii) the accuracy of any statements or information (whether written
or oral) made in or in connection with or supplied in
connection with any Finance Document.
(f) Each New Bank confirms to the Existing Bank and the other Finance
Parties that it:
(i) has made its own independent investigation and assessment of
the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this
Agreement and has not relied exclusively on any information
provided to it by
<PAGE> 82
the Existing Bank or any other Finance Party in connection
with any Finance Document;
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
while any amount is or may be outstanding under this Agreement
or any Commitment is in force;
(iii) is a bank, trust, fund or financial institution whose ordinary
business includes participation in syndicated facilities of
this type; and
(iv) is a Recognised Bank with respect to each Borrower.
(g) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights
and/or obligations assigned, transferred or novated under this
Clause 28.2 or Clause 28.3 (Procedure for novation); or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by any Obligor of its obligations under this
Agreement or otherwise.
(h) Any reference in this Agreement to a Bank includes a New Bank, but
excludes a Bank if no amount is or may be owed to or by that Bank under
this Agreement and its Commitment has been cancelled or reduced to nil.
28.3 PROCEDURE FOR NOVATION
(a) A novation is effected if after prior consultation with the Parent:
(i) the Existing Bank and the New Bank deliver to the Facility
Agent a duly completed certificate executed by the Existing
Bank and the New Bank, substantially in the form of Part I of
Schedule 5 (a "NOVATION CERTIFICATE"); and
(ii) the Facility Agent executes it.
(b) Each Party (other than the Existing Bank and the New Bank) irrevocably
authorises the Facility Agent to execute any duly completed Novation
Certificate on its behalf.
(c) To the extent that they are expressed to be the subject of the novation
in the Novation Certificate:
(i) the Existing Bank and the other Parties (the "EXISTING
PARTIES") will be released from their obligations to each
other under the Finance Documents (the "DISCHARGED
OBLIGATIONS");
(ii) the New Bank and the existing Parties will assume obligations
towards each other under the Finance Documents which differ
from the discharged obligations only insofar as they are owed
to or assumed by the New Bank instead of the Existing Bank;
<PAGE> 83
(iii) the rights of the Existing Bank against the existing Parties
under the Finance Documents and vice versa (the "DISCHARGED
RIGHTS") will be cancelled; and
(iv) the New Bank and the existing Parties will acquire rights
against each other under the Finance Documents which differ
from the discharged rights only insofar as they are
exercisable by or against the New Bank instead of the Existing
Bank,
all on the date of execution of the Novation Certificate by the
Facility Agent or, if later, the date specified in the Novation
Certificate.
The discharged obligations shall not include any obligation under
Clauses 11 (Taxes) and 13 (Increased Costs) in respect of payments made
prior to the effective date of such Novation Certificate.
(d) Each Obligor and each Finance Party hereby agrees for the future that
in the event of an assignment or a transfer by any Existing Bank of all
or part of its rights and obligations under the Finance Documents to a
New Bank, the Existing Bank shall expressly preserve all of its rights
under any security or privilege in relation to the existing rights, so
that such security or privilege shall be automatically transferred to
the New Bank.
28.4 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be one of the Banks, the Facility
Agent shall (in consultation with the Parent) appoint another Bank or
an Affiliate of a Bank to replace that Reference Bank.
28.5 REGISTER
The Facility Agent shall keep a record of all the Parties and shall
supply any other Party (at that Party's expense) with a copy of the
record on request.
28.6 INCREASED COSTS
If any assignment, transfer or novation of or with respect to all or
any part of the rights and/or obligations of a Bank under this
Agreement pursuant to Clause 28.2 (Transfers by Banks) or 28.3
(Procedure for novation) is made which results (or would but for this
Clause result) at the time thereof in amounts becoming payable under
Clauses 11 (Taxes) or 13.1 (Increased costs), then the assignee,
transferee or New Bank shall be entitled to receive such amounts only
to the extent that the assignor, transferor or Existing Bank would have
been so entitled had there been no such assignment, transfer, or
novation.
29. DISCLOSURE OF INFORMATION
29.1 CONFIDENTIALITY
Each Finance Party hereby severally undertakes to each Obligor that it
will keep confidential and that it will not make use of for any
purposes (otherwise than for the purposes of the Finance Documents and
otherwise than in the context of an addition to its general experience,
knowledge or expertise), any of the Finance Documents or other
documents relating to this Agreement and all of the information
distributed on behalf of the Obligors or any of them during syndication
or contained in, received under or obtained in the course of
discussions
<PAGE> 84
relating to the Finance Documents other than any such document or
information which has become generally available to banks in the London
market through no breach by it of this Clause, provided that each
Finance Party shall be entitled to make disclosure of the same:
(i) to its auditors, accountants, legal counsel and tax advisers
and to any other professional advisers appointed to act in
connection with the administration of the Finance Documents or
the enforcement of, or realisation of any security provided
under, any of the Finance Documents;
(ii) to any other third party where the relevant Obligor has
previously agreed in writing that disclosure may be made to
that third party;
(iii) to its Affiliates to the extent required as part of such
Finance Party's credit control procedures;
(iv) to any banking or other regulatory or examining authorities
(whether governmental or otherwise) where such disclosure is
requested by them;
(v) pursuant to subpoena or other legal process, or in connection
with any action, suit or proceeding relating to any of the
Finance Documents;
(vi) pursuant to any law or regulation having the force of law; and
(vii) to any member of the Group.
The provisions of this Clause 29.1 shall supersede any undertakings
with respect to confidentiality previously given by any Finance Party
in favour of any Obligor.
29.2 SUB-PARTICIPANTS
Notwithstanding Clause 29.1 (Confidentiality), a Bank may disclose to
one of its Affiliates or any person with whom it is proposing to enter,
or has entered into, any kind of transfer, participation or other
agreement in relation to this Agreement:
(i) a copy of any Finance Document; and
(ii) any information which that Bank has acquired under or in
connection with any Finance Document,
provided that any such proposed transferee, participant or assignee has
agreed with the Parent to keep any such Finance Document or information
confidential.
29.3 PUBLICITY
The Parent and the Arranger shall agree the form of all press
announcements issued in respect of the Finance Documents and any
transaction contemplated thereby.
30. SET-OFF
Following the occurrence of an Event of Default, a Finance Party may
set off any obligation due and payable by an Obligor under the Finance
Documents (to the extent beneficially
<PAGE> 85
owned by that Finance Party) against any obligation (whether or not due
and payable) owed by that Finance Party to that Obligor, regardless of
the place of payment, booking branch or currency of either obligation.
If the obligations are in different currencies, the Finance Party may
convert either obligation, at the cost of such Obligor, at a market
rate of exchange in its usual course of business for the purpose of the
set-off. If either obligation is unliquidated or unascertained, the
Finance Party may set off in an amount estimated by it in good faith to
be the amount of that obligation.
31. PRO-RATA SHARING
31.1 REDISTRIBUTION
If any amount owing by an Obligor under this Agreement to a Finance
Party (the "RECOVERING FINANCE PARTY") is discharged by payment,
set-off or any other manner other than through the Facility Agent in
accordance with Clause 10 (Payments) (a "RECOVERY"), then:
(a) the recovering Finance Party shall, within 3 Business Days,
notify details of the recovery to the Facility Agent;
(b) the Facility Agent shall determine whether the recovery is in
excess of the amount which the recovering Finance Party would
have received had the recovery been received by the Facility
Agent and distributed in accordance with Clause 10 (Payments);
(c) subject to Clause 31.3 (Exception) the recovering Finance
Party shall, within 3 Business Days of demand by the Facility
Agent, pay to the Facility Agent an amount (the
"REDISTRIBUTION") equal to the excess;
(d) the Facility Agent shall treat the redistribution as if it
were a payment by the Obligor concerned under Clause 10
(Payments) and shall pay the redistribution to the Finance
Parties (other than the recovering Finance Party) in
accordance with Clause 10.6 (Partial payments); and
(e) after payment of the full redistribution, the recovering
Finance Party will be subrogated to the portion of the claims
paid under paragraph (d) above, and that Obligor will owe the
recovering Finance Party a debt which is equal to the
redistribution, immediately payable and of the type originally
discharged.
31.2 REVERSAL OF REDISTRIBUTION
If:
(a) a recovering Finance Party must subsequently return a
recovery, or an amount measured by reference to a recovery, to
an Obligor; and
(b) the recovering Finance Party has paid a redistribution in
relation to that recovery,
each Finance Party shall, within 3 Business Days of demand by the
recovering Finance Party through the Facility Agent, reimburse the
recovering Finance Party all or the appropriate portion of the
redistribution paid to that Finance Party. Thereupon the subrogation in
Clause 31.1(e) will operate in reverse to the extent of the
reimbursement.
<PAGE> 86
31.3 EXCEPTION
A recovering Finance Party need not pay a redistribution to the
Facility Agent (i) to the extent that it would not, after the payment,
have a valid claim against the Obligor concerned in the amount of the
redistribution pursuant to Clause 31.1 (Redistribution) paragraph (e)
or (ii) where the recovering Finance Party made the recovery as a
consequence of a judgment in any legal proceedings, to the extent that
any other Finance Party was given notice of such proceedings and, being
entitled to do so, did not join in such proceedings.
32. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid
or unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction
of any other provision of the Finance Documents; or
(b) the legality, validity or enforceability in other
jurisdictions of that or any other provision of the Finance
Documents.
33. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this
has the same effect as if the signatures on the counterparts were on a
single copy of this Agreement.
34. NOTICES
34.1 GIVING OF NOTICES
All notices or other communications under or in connection with this
Agreement shall be given in writing or by facsimile. Any such notice
will be deemed to be given as follows:
(a) if in writing, when delivered;
(b) if by facsimile, when received.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place. Any
notice given to the Facility Agent shall be confirmed in writing, but
non receipt of the written confirmation shall not invalidate such
notice or any action taken in reliance on the facsimile version
thereof.
34.2 ADDRESSES FOR NOTICES
The address and facsimile number of each Party for all notices under or
in connection with this Agreement are:
(a) as specified in Schedule 1 or 2, as the case may be, or in the
Novation Certificate, Borrower Accession Agreement or
Guarantor Accession Agreement by which such Party became a
party to this Agreement, as such Party's address for notices;
or
<PAGE> 87
(b) as otherwise notified by that Party for this purpose to the
Facility Agent (or in the case of the Facility Agent as
otherwise notified by the Facility Agent to the other Parties)
by not less than five Business Days' notice.
35. JURISDICTION
35.1 SUBMISSION
For the benefit of each Finance Party, each Obligor agrees that the
courts of England have jurisdiction to settle any disputes in
connection with any Finance Document and accordingly submits to the
jurisdiction of the English courts.
35.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, each Obligor not
incorporated in England:
(a) irrevocably appoints Getty U.K. whose registered office is at
101 Bayham Street, London NW1 0AG as its agent for service of
process relating to any proceedings before the English courts
in connection with any Finance Document;
(b) agrees that failure by such process agent to notify the
Obligor of the process will not invalidate the proceedings
concerned; and
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 34.2
(Addresses for notices).
Getty U.K. hereby irrevocably accepts such appointment by each other
Obligor.
35.3 FORUM CONVENIENCE AND ENFORCEMENT ABROAD
Each Obligor:
(a) waives objection to the English courts on grounds of
inconvenient forum or otherwise as regards proceedings in
connection with a Finance Document; and
(b) agrees that a judgment or order of an English court in
connection with a Finance Document is (subject to rights of
appeal before the English courts) conclusive and binding on it
and may be enforced against it in the courts of any other
jurisdiction.
35.4 NON-EXCLUSIVITY
Nothing in this Clause 35 limits the right of a Finance Party to bring
proceedings against an Obligor in connection with any Finance Document:
(a) in any other court of competent jurisdiction including in New
York City, New York, United States of America; or
(b) concurrently in more than one jurisdiction.
<PAGE> 88
35.5 WAIVER OF JURY TRIAL
Each Obligor waives, to the extent permitted by applicable law, trial
by jury in any litigation in any court with respect to, in connection
with, or arising out of this Agreement, or the validity, protection,
interpretation, collection or enforcement hereof; and the Obligors
hereby waive, to the extent permitted by applicable law, the right to
interpose any set off or counterclaim or cross-claim in connection with
any such litigation, irrespective of the nature of such set off,
counterclaim or cross-claim except to the extent that the failure so to
assert any such set off, counterclaim or cross-claim would permanently
preclude the prosecution of or recovery upon same. The Obligors agree
that this Clause 35.5 is a specific and material aspect of this
Agreement and acknowledge that the Banks would not make the Facilities
available if this Clause 35.5 were not part of this Agreement.
36. GOVERNING LAW
This Agreement is governed by English law.
37. SENIOR INDEBTEDNESS/DESIGNATED SENIOR INDEBTEDNESS
The Advances and all other monetary obligations of the Parent, whether
in its capacity as a Borrower, a Guarantor or otherwise, under any of
the Finance Documents constitute "Senior Indebtedness" and "Designated
Senior Indebtedness" as defined in the indenture dated 27th May, 1998
made between the Parent and The Bank of New York, as trustee, relating
to the Parent's 4.75% Convertible Subordinated Notes due 2003. In
addition, to the extent that any Obligor is now or may hereafter become
party to any indenture, note, loan agreement or other document which
contemplates or provides for the existence of "Senior Indebtedness" or
"Designated Senior Indebtedness" of such Obligor, the parties intend
that the Advances and all other monetary obligations of such Obligor,
whether in its capacity as a Borrower, a Guarantor or otherwise, under
any of the Finance Documents shall constitute "Senior Indebtedness" and
"Designated Senior Indebtedness" for purposes of such indenture, note,
loan agreement or other document.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
<PAGE> 89
SCHEDULE 1
VARIOUS PARTIES
PART I
ORIGINAL BORROWER
Getty Images, Inc.
Eyewire, Inc.
PhotoDisc, Inc.
Art.com, Inc.
Tony Stone Images/America Inc
Tony Stone Images/Chicago Inc.
Tony Stone Images/New York Inc.
Tony Stone Images/Los Angeles Inc.
Getty Communications Group Finance Limited
Getty Communications Limited
Getty Images Limited
ADDRESS FOR NOTICES FOR THE ORIGINAL BORROWER
101 Bayham Street
London
NW1 0AG
Attention: Cameron Anderson
Fax: 0171 267 6540
WITH A COPY TO THE OBLIGOR'S AGENT:
701 North 34th Street
Suite 400
Seattle
Washington 98103
Attention: Christopher Roling
Fax: 001 206 268 1202
<PAGE> 90
PART II
ORIGINAL GUARANTORS
Getty Images, Inc.
Eyewire,Inc
PhotoDisc, Inc.
Art.com, Inc.
Tony Stone Images/America, Inc.
Tony Stone Images/Chicago Inc.
Tony Stone Images/New York Inc.
Tony Stone Images/Los Angeles Inc.
3032097 Nova Scotia Limited
Getty Communications Limited
Getty Communications Group Finance Limited
Getty Images Limited
ADDRESS FOR NOTICES FOR EACH GUARANTOR REFERRED TO ABOVE:
101 Bayham Street
London
NW1 0AG
Attention: Cameron Anderson
Fax: 0171 267 6540
WITH A COPY TO THE OBLIGOR'S AGENT:
701 North 34th Street
Suite 400
Seattle
Washington 98103
Attention: Christopher Roling
Fax: 001 206 268 1202
<PAGE> 91
SCHEDULE 2
BANKS AND COMMITMENTS
COLUMN 1
BANKS AND NOTICE
DETAILS TRANCHE A
COMMITMENT
US$
HSBC Bank plc 50,000,000
------------------------
TOTAL 50,000,000
------------------------
Address for notices:
27/32 Poultry
London
EC2P 2BX
Attention: Graham Boyd
HSBC Bank plc
Media Telecoms & IT Team
Fax: 0171 260 4800
<PAGE> 92
SCHEDULE 3
PART I
CONDITIONS PRECEDENT DOCUMENTS TO FIRST TRANCHE A DRAWDOWN
1. A certified copy of the constitutional documents, including the
memorandum and articles of association, and certificates of
registration of each Obligor (or, for each U.S. Obligor and 3032097
Nova Scotia Limited, the certificate and articles of incorporation and
by-laws), as currently in force.
2. (a) A certified copy of a resolution of the board of directors (or
equivalent governing body authority) of each Obligor approving
the terms of, and the transactions contemplated by the Finance
Documents to which it is a party and resolving that it execute
each such Finance Document and authorising a named person or
persons to do so on behalf of such Obligor and, in the case of
a Borrower, to issue any Request;
(b) a specimen of the signature of each authorised signatory of
each Obligor authorised to bind that company by his signature,
pursuant to the board resolution referred to in paragraph (a)
above;
(c) a certificate of a director of each Obligor (or, for each U.S.
Borrower and 3032097 Nova Scotia Limited, by one of its
officers) (i) confirming that utilisation of that part of the
Facility available to it in full would not cause any borrowing
limit binding on it to be exceeded and (ii) certifying that
each copy document delivered by such Obligor under this Part 1
of Schedule 3 is correct, complete and in full force and
effect as at a date no earlier than the date of this
Agreement; and
(d) a certified copy of a resolution, passed by all the holders of
the issued or allotted shares in each non US Obligor,
approving the terms of, and the transactions contemplated by,
the Finance Documents to which such non US Obligor is to be a
party.
3. A copy (or originals) of the duly executed Finance Documents.
4. A copy of any other authorisation or consents or other document,
opinion or assurance which is necessary or desirable in connection with
the entry into and performance of, and the transactions contemplated
by, any Finance Document or for the validity and enforceability of any
Finance Document.
5. At least two originals of each of the Security Documents duly executed
by the relevant Obligor and each other party thereto, together with
share certificates, stock powers or share transfer forms (as
appropriate) executed in blank and title documents (if any) relating to
assets charged by the Security Documents which are contemplated to be
delivered to the Security Agent and copies of all notices required to
be despatched pursuant to the Security Documents.
6. A certified copy of the Financial Forecasts.
<PAGE> 93
7. Satisfactory results to all company searches and land priority/charge
searches relating to each Obligor (including in respect of leasehold
property copies of the relevant lease agreements).
8. Releases for all existing Encumbrances registered in respect of any
assets of any member of the Group, save Permitted Encumbrances.
9. Requests in relation to all Advances to be made at Signing Date.
10. A legal opinion of:
(a) Allen & Overy, English legal advisers to the Facility Agent,
addressed to the Finance Parties;
(b) Kirkland & Ellis, United States legal advisers to the Facility
Agent, addressed to the Finance Parties; and
(c) in-house U.S. legal counsel to the Group in relation to US law
addressed to the Finance Parties;
(d) Weil, Gotshal & Manges legal advisers to the Group, in
relation to US law addressed to the Finance Parties; and
(e) Stewart McKelvey Stirling Scales legal advisers to the Group
in relation to Canadian law addressed to the Finance Parties,
together with all such other legal opinions in relation to the US
Obligors or 3032097 Nova Scotia Limited as the Facility Agent may
reasonably require.
11. Evidence that all Borrowings not permitted pursuant to Clause 19.10
(Borrowing) have been repaid.
12. Written confirmation from Getty U.K. that it accepts the appointment as
process agent for each Obligor which is not incorporated in England and
any subsequent appointment made by any Additional Borrower or
Additional Guarantor.
13. A solvency statement of the chief financial officer of each U.S.
Obligor.
14. Structure Memorandum.
15. Payment of all fees payable under Clause 23 (fees) and expenses payable
under Clause 24.1(a) (Initial and Special Costs)
<PAGE> 94
PART 1A
FURTHER CONDITIONS PRECEDENT
1. A certified copy of the constitutional documents, including the by-laws
and certificate and articles of incorporation of The Image Bank Inc.
2. A certified copy of a resolution of the board of directors of the
Parent approving the terms of and the transactions contemplated by the
Acquisition Agreements to which it is a party.
3. A certified copy of a resolution of the board of directors of The Image
Bank, Inc approving the terms of and the transactions contemplated by
the Finance Documents to which it is a party and resolving that it
execute each such Finance Document and authorising a named person or
persons do so on its behalf.
4. A certificate signed by an authorised signatory of the Parent on its
behalf to the effect that:
(i) the Acquisition was completed on or about 22nd November,
1999;
(ii) completion of the Acquisition has not, in the opinion of the
executive directors of the Parent, materially and adversely
impacted on the ability of the enlarged Group to comply with
the financial covenants set out in Clause 20 (Financial
Covenants) until the Final Maturity Date; and
(iii) all regulatory approvals and authorisations necessary or
desirable in connection with the TIB Acquisition have been
obtained.
5. A copy of the following duly executed documents:
(a) the Acquisition Agreements and the press announcement in
connection with the TIB Acquisition; and
(b) the Prospectus.
6. Satisfactory results of all company searches and land priority/charge
searches relating to the Acquired Assets.
7. A certified copy of the Base Financial Statements.
8. A Guarantor Accession Agreement duly executed by The Image Bank, Inc.
9. At least two originals of each of the Security Documents duly executed
by The Image Bank, Inc. and each other party thereto, together with
such legal opinions as the Facility Agent may reasonably require, stock
powers executed in blank and title documents (if any) relating to
assets charged by the Security Documents which are contemplated to be
delivered to the Security Agent and copies of all notices required to
be despatched pursuant to the Security Documents.
<PAGE> 95
PART II
CONDITIONS PRECEDENT DOCUMENTS ON BORROWER OR GUARANTOR ACCESSION
Each of the documents referred to in Schedule 3 Part I paragraphs 1, 2, 4, 7, 10
and 15 relating to any Additional Borrower or Additional Guarantor.
<PAGE> 96
SCHEDULE 4
FORM OF REQUEST
To: HSBC Investment Bank plc as Facility Agent
Attention: [ ]
From: [BORROWER]
Date:[ ]
GETTY IMAGES, INC.
UP TO U.S.$100,000,000 REVOLVING CREDIT FACILITY AGREEMENT
DATED OCTOBER, 1999
(THE "CREDIT AGREEMENT")
Terms used in this Request and defined in the Credit Agreement have the same
meaning in this Request as in the Credit Agreement.
1. We wish to borrow an Advance as follows:
(a) Borrower: [ ]
(b) Drawdown Date: [ ]
(c) Original Dollar Amount/amount: [U.S.$ ]
(d) Currency: [Dollars/Sterling/euros/other]
(e) Term: [ ]
(f) Payment Instructions: [ ].
2. We confirm that each condition specified in Clause 4.3 (Conditions
Precedent to each Advance) is satisfied on the date of this Request.
Yours faithfully,
________________________
for and on behalf of
GETTY IMAGES, INC.
as Obligors' Agent
<PAGE> 97
SCHEDULE 5
FORMS OF ACCESSION DOCUMENTS
PART I
NOVATION CERTIFICATE
To: HSBC Investment Bank plc as Facility Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
GETTY IMAGES, INC.
UP TO U.S.$100,000,000 REVOLVING CREDIT FACILITY AGREEMENT
DATED OCTOBER, 1999
(THE "CREDIT AGREEMENT")
References to Clauses are to Clauses of the Credit Agreement.
We refer to Clause 28.3 (Procedure for novation).
1. We [ ] (the "EXISTING BANK") and [ ] (the "NEW BANK") agree to the
Existing Bank and the New Bank novating all the Existing Bank's rights
and obligations referred to in the Schedule in accordance with Clause
28.3.
2. From the date specified in paragraph 3 below, the New Bank becomes
party to the Credit Agreement as a Bank, with the rights and
obligations referred to in the Schedule.
3. The specified date for the purposes of Clause 28.3(c) is [date of
novation].
4. The Facility Office and address for notices of the New Bank for the
purposes of Clause 34.2 (Addresses for notices) are set out in the
Schedule.
5. The Existing Bank and the New Bank acknowledge and agree that Clauses
28.2 (Transfers by Banks) paragraphs (d), (e), (f) and (g) apply to
this Novation Certificate and the novation contemplated hereby as if
set out in full herein, mutatis mutandis.
6. It is expressly agreed that the security created or evidenced by the
Security Documents shall be preserved for the benefit of the New Bank
and each other Finance Party.
7. This Novation Certificate is governed by English law.
<PAGE> 98
THE SCHEDULE
RIGHTS AND OBLIGATIONS TO BE NOVATED
[Details of the rights and obligations of the Existing Bank to be novated].
[NEW BANK]
[Facility Office Address for notices]
[Existing Bank] [New Bank]
By: By:
Date: Date:
[ ]
as Facility Agent
By:
Date:
<PAGE> 99
PART II
BORROWER ACCESSION AGREEMENT
To: HSBC Investment Bank plc as Facility Agent
From: [PROPOSED BORROWER] and GETTY IMAGES, INC.
[Date]
GETTY IMAGES, INC. UP TO U.S.$100,000,000
REVOLVING CREDIT FACILITY AGREEMENT
DATED OCTOBER, 1999
(THE "CREDIT AGREEMENT")
Terms used herein which are defined in the Credit Agreement shall have the same
meaning herein as in the Credit Agreement.
We refer to Clause 17.1 (Additional Borrowers).
We, [Name of company] of [Registered Office] (Registered no. [ ] agree to become
party to and to be bound by the terms of the Credit Agreement as an Additional
Borrower in accordance with Clause 17.1 (Additional Borrowers).
The address for notices of the Additional Borrower for the purposes of Clause
34.2 (Addresses for notices) is:
[ ]
This Agreement is governed by English law.
[ADDITIONAL BORROWER]
By:
GETTY IMAGES, INC.
By:
[Facility Agent]
By:
<PAGE> 100
PART III
GUARANTOR ACCESSION AGREEMENT
To: HSBC Investment Bank plc as Facility Agent
From: [PROPOSED GUARANTOR]
Date: [ ]
GETTY IMAGES, INC. UP TO U.S.$100,000,000
REVOLVING CREDIT FACILITY AGREEMENT
DATED OCTOBER, 1999
(THE "CREDIT AGREEMENT")
Terms used herein which are defined in the Credit Agreement shall have the same
meaning herein as in the Credit Agreement.
We refer to Clause 17.2 (Additional Guarantors).
We, [name of company] of [Registered Office] (Registered no. [ ]) agree to
become party to and to be bound by the terms of the Credit Agreement as an
Additional Guarantor in accordance with Clause 17.2 (Additional Guarantors).
Our address for notices for the purposes of Clause 34.2 (Addresses for notices)
is:
[ ]
This Deed is governed by English law.
[EXECUTION AS A DEED
BY PROPOSED GUARANTOR]
GETTY IMAGES, INC.
By:
[Facility Agent]
By:
<PAGE> 101
SCHEDULE 6
SECURITY DOCUMENTS
1. Security over the shares of each of:
Art.Com, Inc
Photodisc, Inc.
Eyewire, Inc.
Tony Stone Images/America Inc.
Tony Stone Images/Los Angeles Inc.
Tony Stone Images/Chicago Inc.
Tony Stone Images/New York Inc.
Tony Stone Images/Seattle Inc.
Tri-Energy Productions Inc.
Liason Agency Inc
Getty Images Limited
Getty Communications Group Finance Limited
Allsport Photographic Ltd
Getty Communications Limited
3032097 Nova Scotia Limited
Hulton Getty Holdings Limited
2. Debenture or general business charge from:
Getty Images Inc
PhotoDisc, Inc
Art.Com, Inc.
Eyewire, Inc
Tony Stone Images/America Inc.
Tony Stone Images/Chicago Inc.
Tony Stone Images/New York Inc.
Tony Stone Images/Los Angeles Inc.
3032097 Nova Scotia Limited
Getty Communications Group Finance Limited
Getty Communications Limited
Getty Images Limited
3. Charge over trademarks (U.S. law) from:
Getty Communications Limited
Getty Images Limited
<PAGE> 102
SCHEDULE 7
CALCULATION OF THE MANDATORY COST
(a) For the purpose of the definition of Mandatory Cost, the Mandatory Cost
for an Advance for each of its Terms is the rate determined by the
Facility Agent to be equal to the arithmetic mean (rounded upward, if
necessary, to four decimal places/the nearest 1/16th of one per cent.)
of the respective rates notified by each of the Reference Banks to the
Facility Agent and calculated in accordance with the following
formulae:
in relation to an Advance denominated in Sterling:
BY + S(Y-Z) + F x 0.01 % per annum = Mandatory Cost
----------------------
100-(B + S)
in relation to any other Advance:
F x 0.01 % per annum = Mandatory Cost
--------
300
where on the day of application of the formula:
B is the percentage of the Reference Bank's eligible liabilities
(in excess of any stated minimum) which the Bank of England
requires the Reference Bank to hold on a non-interest-bearing
deposit account in accordance with its cash ratio
requirements;
Y is LIBOR at or about 11.00 a.m. on that day for the relevant
Interest Period;
S is the percentage of the Reference Bank's eligible liabilities
which the Bank of England requires the Reference Bank to place
as a special deposit;
Z is the interest rate per annum allowed by the Bank of England
on special deposits; and
F is the charge payable by the Reference Bank to the Financial
Services Authority under paragraph 2.02 or 2.03 (as
appropriate) of the Fees Regulations but where for this
purpose, the figure in paragraph 2.02b and 2.03b will be
deemed to be zero expressed in pounds per (pound)1 million of
the fee base of the Reference Bank.
(b) For the purposes of this Schedule 7:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the
meanings given to them by the Bank of England at the time of
application of the formula by the Bank of England; and
(ii) "FEE BASE" has the meaning given to it in the Fees
Regulations;
(iii) "FEES REGULATIONS" means the Banking Supervision (Fees)
Regulations 1998 and/or any other regulations governing the
payment of fees for banking supervision.
<PAGE> 103
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and
Y = 15%, BY is calculated as 0.5 x 15.
(d) If a Reference Bank does not supply a rate to the Agent, the applicable
Mandatory Cost will be determined on the basis of the rate(s) supplied
by the remaining Reference Banks.
(e) (i) Each formula is applied on the first day of each Term.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places/the nearest
1/16th of one per cent..
(f) If the Facility Agent determines that a change in circumstances has
rendered, or will render, the formulae inappropriate, the Facility
Agent (after consultation with the Banks) shall notify the Parent of
the manner in which the Mandatory Cost will subsequently be calculated.
The manner of calculation so notified by the Agent shall, in the
absence of manifest error, be binding on all the Parties.
<PAGE> 104
SCHEDULE 8
MATERIAL SUBSIDIARIES
Getty Images Inc
PhotoDisc, Inc
Tony Stone Images/America Inc.
Tony Stone Images/Chicago Inc.
Tony Stone Images/New York Inc.
Tony Stone Images/Los Angeles Inc.
3032097 Nova Scotia Limited
Eyewire, Inc
Art.Com, Inc.
Getty Communications Group Finance Limited
Getty Communications Limited
Getty Images Limited
Allsport (UK) Limited
<PAGE> 105
SCHEDULE 9
REPAYMENT OF EXISTING REVOLVING CREDIT FACILITY
AMOUNT TO BE REPAID ROLL-OVER DATE
US$
3,000,000 29.10.99
5,000,000 29.10.99
10,000,000 29.10.99
2,000,000 01.11.99
<PAGE> 106
SIGNATORIES
ORIGINAL BORROWER
GETTY IMAGES, INC.
As Original Borrower and Original Guarantor
By: Jonathan Klien
EYEWIRE, INC.
As Original Borrower and Original Guarantor
By: Bradley Zumwalt
PHOTODISC, INC.
As Original Borrower and Original Guarantor
By: Jonathan Klien
ART.COM, INC.
As Original Borrower and Original Guarantor
By: Jonathan Klien
TONY STONE IMAGES/AMERICA INC.
As Original Borrower and Original Guarantor
By: Jonathan Klien
TONY STONE IMAGES/CHICAGO, INC
As Original Borrower and Original Guarantor
By: Jonathan Klien
TONY STONE IMAGES/NEW YORK, INC
As Original Borrower and Original Guarantor
<PAGE> 107
By: Jonathan Klien
TONY STONE IMAGES/LOS ANGELES, INC
As Original Borrower and Original Guarantor
By: Jonathan Klien
GETTY COMMUNICATIONS LIMITED
As Original Borrower and Original Guarantor
By: Jonathan Klien
GETTY COMMUNICATIONS GROUP FINANCE LIMITED
As Original Borrower and Original Guarantor
By: Jonathan Klien
GETTY IMAGES LIMITED
As Original Borrower and Original Guarantor
By: Jonathan Klien
ORIGINAL GUARANTOR
3032097 NOVA SCOTIA LIMITED
As Original Guarantor
By: Jonathan Klien
ARRANGER
HSBC INVESTMENT BANK plc
<PAGE> 108
By: M.T. Nickell
ORIGINAL BANK
HSBC BANK plc
By: Graham Boyd
FACILITY AGENT
HSBC INVESTMENT BANK plc
By: M. T. Nickell
SECURITY AGENT
HSBC INVESTMENT BANK plc
By: M. T. Nickell
OVERDRAFT BANK
HSBC BANK plc
By: Graham Boyd
<PAGE> 109
CONFORMED COPY INCORPORATING ALL
AMENDMENTS AS AT 3RD DECEMBER, 1999
CREDIT AGREEMENT
DATED 25th October, 1999
Up to U.S.$100,000,000
REVOLVING CREDIT FACILITY
Between
GETTY IMAGES, INC.
and others as Borrowers
and/or Guarantors
HSBC INVESTMENT BANK plc
as Arranger
THE BANKS
HSBC INVESTMENT BANK plc
as Security Agent
HSBC INVESTMENT BANK plc
as Facility Agent
and
HSBC Bank plc
as Overdraft Bank
THIS IS DESIGNATED SENIOR INDEBTEDNESS FOR THE PURPOSES
OF THE 4.75% CONVERTIBLE SUBORDINATED NOTES DUE
2003 ISSUED BY GETTY IMAGES INC.
ALLEN & OVERY
London
BK:701106.1
<PAGE> 110
INDEX
<TABLE>
<CAPTION>
CLAUSE PAGE
<C> <C>
1. Interpretation.......................................................................................1
2. The Facilities......................................................................................19
3. Purpose.............................................................................................22
4. Conditions Precedent................................................................................22
5. Drawdown............................................................................................23
6. Repayment...........................................................................................24
7. Prepayment and Cancellation.........................................................................24
8. Interest............................................................................................26
9. Optional Currencies.................................................................................28
10. Payments............................................................................................28
11. Taxes...............................................................................................30
12. Market Disruption...................................................................................33
13. Increased Costs.....................................................................................34
14. Illegality..........................................................................................36
15. Mitigation..........................................................................................36
16. Guarantee...........................................................................................37
17. Additional Borrowers, Guarantors and Security.......................................................40
18. Representations and Warranties......................................................................43
19. Undertakings........................................................................................50
20. Financial Covenants.................................................................................63
21. Default.............................................................................................65
22. The Agents and The Arranger.........................................................................71
23. Fees................................................................................................76
24. Expenses............................................................................................78
25. Indemnities.........................................................................................78
26. Evidence and Calculations...........................................................................79
27. Amendments and Waivers..............................................................................79
28. Changes to the Parties..............................................................................81
29. Disclosure of Information...........................................................................83
30. Set-Off.............................................................................................84
31. Pro-Rata Sharing....................................................................................85
32. Severability........................................................................................86
33. Counterparts........................................................................................86
34. Notices.............................................................................................86
35. Jurisdiction........................................................................................87
36. Governing Law.......................................................................................88
37. Senior Indebtedness/Designated Senior Indebtedness..................................................88
</TABLE>
<PAGE> 111
<TABLE>
<CAPTION>
SCHEDULES PAGE
<C> <C>
1. Various Parties.....................................................................................89
Part I - Original Borrower..........................................................................89
Part II - Original Guarantors.......................................................................90
2. Banks and Commitments...............................................................................91
3. Part I - Conditions Precedent Documents to Signing..................................................92
Part 1A - Further Conditions Precedent..............................................................94
Part II - Conditions Precedent Documents on Borrower or Guarantor Accession.........................95
4. Form of Request.....................................................................................96
5. Forms of Accession Documents........................................................................97
Part I - Novation Certificate.......................................................................97
Part II - Borrower Accession Agreement..............................................................99
Part III - Guarantor Accession Agreement...........................................................100
6. Security Documents.................................................................................101
7. Calculation of the Mandatory Cost..................................................................102
8. Material Subsidiaries..............................................................................104
9. Repayment of Existing Revolving Credit Facility....................................................105
SIGNATORIES.................................................................................................106
</TABLE>