Credit Agreement [Amendment] - Getty Images Inc., HSBC Investment Bank plc and HSBC Bank plc
CONFORMED COPY
To: Getty Images, Inc.
in its capacity as Obligors' Agent
3rd December, 1999
Dear Sirs,
UP TO US$100,000,000 REVOLVING CREDIT FACILITY AGREEMENT DATED 25TH OCTOBER,
1999
This letter is supplemental to and amends a credit agreement dated 25th October,
1999 and made between the Parent, the Original Borrowers, the Original
Guarantors, the Arranger, the Banks, the Facility Agent, the Security Agent and
the Overdraft Bank (the "CREDIT AGREEMENT") pursuant to the terms of which the
Banks have agreed to make Advances to the Borrowers up to an aggregate maximum
principal amount of US$100,000,000 on the terms set out therein.
We agree that the Credit Agreement shall be amended in accordance with the
provisions set out below.
Terms defined in the Credit Agreement shall bear the same meaning when used in
this letter unless otherwise defined herein or the context requires otherwise.
1. AMENDMENTS
With effect from the Effective Date, the Credit Agreement shall be
amended as follows:
(a) for the avoidance of doubt, the parties listed on page 1 of
the Credit Agreement shall be amended to include "HSBC Bank
plc as overdraft bank (the "OVERDRAFT BANK")" at paragraph 8
and the definition of "Overdraft Bank" in Clause 1.1
(Definitions) shall be deleted.
(b) the following definition shall be included in Clause 1.1
(Definitions) as follows:
""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
U.K.."
(c) the definitions of "Finance Party" and "Finance Documents" in
Clause 1.1 (Definitions) shall be amended to read as follows:
""FINANCE PARTY" means the Arranger, each Bank, the Facility
Agent and the Security Agent (together the "FINANCE PARTIES")
which term, for the purposes of
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Clauses 16 (Guarantee), 22 (The Agents and The Arranger) and
24.2 (Enforcement Costs) shall also include the Overdraft Bank
and any Hedging Bank."
""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."
(d) the definitions of "DISCLOSURE LETTER" and "REPORTS" in Clause
1.1 (Definitions) shall be deemed deleted in their entirety
and all consequential amendments shall be deemed made.
(e) two additional definitions shall be included in Clause 1.1
(Definitions) and shall read as follows:
""HEDGING BANK" means any Bank in its capacity as the provider
of hedging facilities for the hedging of exposures arising
pursuant to the terms of 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."
(f) Clause 1.2 (b) (Construction) shall be amended to read as
follows:
"(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."
(g) Clause 2.7 (Tranche B Commitment) shall be amended to read as
follows:
"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).
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(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 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 increased 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)."
(h) All references to Tranche B in the Credit Agreement
shall be deemed deleted in their entirety so that:
(i) references to "Tranche B" in the definitions of
"Advance", "Commitment", "Facility", "Rollover
Advance" and "Total Commitments" in Clause 1.1
(Definitions) shall be deemed deleted; and
(ii) the definitions of "Tranche B", "Tranche B
Commitment" in Clause 1.1 (Definitions) and Clauses
2.1(b) (Facilities), 3(b) (Purpose), 4.2 (Conditions
precedent to Advances under Tranche B), 5.2(c)
(Completion of Requests), 19.32(c) (Obligor cover),
Column II of Schedule 2 (Tranche B Commitment), Part
II of Schedule 3 and paragraph 1(e) of Schedule 4
shall be deemed deleted in their entirety,
and all subsequent clauses and sub-clauses deemed renumbered
and cross referencing deemed amended accordingly.
(i) Clauses 4.1 (Conditions precedent to drawdown) will be amended
to read as follows:
"4.1 CONDITIONS PRECEDENT TO DRAWDOWN
(a) Subject to the provisions of paragraph (b) below, the
obligations of each Finance Party to the Obligors
under this Agreement are subject to the
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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
(Representations 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 IA of Schedule 3
in form and substance satisfactory to the Facility
Agent (acting reasonably) and (ii) the Tranche A
Commitments have been increased pursuant to the terms
of Clause 2.7 (Tranche A Commitments)."
(j) the definition of "Consolidated Total Borrowings" in Clause
20.1 (Financial Definitions) shall be amended so that it reads
as follows:
""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."
(k) for the purposes of Clause 17.3(a)(ii) (Security) only, the
term "Banks" shall be deemed deleted and replaced with
"Security Agent" and in respect of Clause 22.7(a) (Default)
and 22.11(c)(i) (Information) only the term "Bank" or "Banks"
shall be deemed deleted and replaced with "Finance Party" or
"Finance Parties" as appropriate.
(l) Schedule 3 Part 1A entitled "Further Conditions Precedent"
shall be inserted to read as follows:
"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.
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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 certified 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."
2. EFFECTIVE DATE
The effective date for this letter shall be the date on which the
Facility Agent receives a copy of this letter duly countersigned by all
parties hereto (the "EFFECTIVE DATE").
3. REPRESENTATIONS AND WARRANTIES
The Obligors' Agent, on behalf of each Obligor, represents on the date
hereof to each Finance Party in the same terms set out in Clause 18
(Representations and Warranties) of the Credit Agreement (with the
exception of those representations and warranties referred to in Clause
18.2) and to any Hedging Bank and the Overdraft Bank in the same terms
as set out in Clause 18.1(a), (b), (c), (d), (f), (q) and (x) with
reference to the facts and circumstances now existing. Any reference to
Finance Documents in that Clause shall be construed so as to include
this letter and the Credit Agreement as amended by this letter.
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4. INTERPRETATION
Save as amended by this letter, each of the Finance Documents shall
remain in full force and effect. References in the Credit Agreement to
"this Agreement", "hereof", "hereunder" and expressions of similar
import shall be deemed to be references to the Credit Agreement as
amended by this letter. Reference in any Finance Document to the Credit
Agreement shall be construed as references to the Credit Agreement as
amended by this letter.
5. COUNTERPARTS
This letter may be executed in counterparts each of which, when taken
together, shall constitute one and the same agreement.
6. EXPENSES
The Obligors' Agent shall on demand (without double counting under
Clause 24.1(a) (Initial and special costs)) pay to the Facility Agent,
for the account of the relevant Finance Party, the amount of all
reasonable costs and expenses (together with value added tax or any
similar tax thereon) and including, without limitation, the fees and
expenses of the Facility Agent's legal advisers incurred in connection
with the negotiation, preparation, printing and execution of this
letter.
7. FINANCE DOCUMENT
This letter is designated by each party as a Finance Document.
8. MISCELLANEOUS
The provisions of Clauses 32 (Severability), 34 (Notices) and 35
(Jurisdiction) of the Credit Agreement shall be deemed to be
incorporated into this letter as if expressly set out herein (mutatis
mutandis).
9. LAW
This letter shall be governed by and shall be construed in accordance
with English law.
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Yours faithfully,
----------------------
For and on behalf of
HSBC INVESTMENT BANK plc
as Facility Agent
By: JOHN HAIRE
For and on behalf of
HSBC BANK plc
as Bank and Overdraft Bank
By: A.O. THOMAS
AGREED AND ACCEPTED BY:
SUZANNE PAGE
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For and on behalf of
GETTY IMAGES, INC.
as Obligors' Agent
For itself and on behalf of the other Obligors set out below:
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