Credit Agreement - Getty Images Inc., Midland Bank plc and HSBC Investment Bank plc
CONFORMED COPY
CREDIT AGREEMENT
DATED 9th February, 1998
U.S.$24,000,000
TERM LOAN FACILITY
L16,000,000
MULTICURRENCY TERM LOAN FACILITY
L6,750,000
REVOLVING CREDIT FACILITY
Between
GETTY IMAGES, INC.
and others as Borrowers
and/or Guarantors
MIDLAND BANK PLC
as Arranger
THE BANKS
HSBC INVESTMENT BANK PLC
as Security Agent
and
HSBC INVESTMENT BANK PLC
as Facility Agent
ALLEN & OVERY
London
B3:118491.6
<PAGE>
INDEX
<TABLE>
<CAPTION>
CLAUSE PAGE
------ ----
<S> <C> <C>
1. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
2. The Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
4. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . 23
5. Drawdown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6. Denomination of Tranche B Advances . . . . . . . . . . . . . . . . . . 26
7. Ancillary Facilities . . . . . . . . . . . . . . . . . . . . . . . . . 28
8. Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9. Prepayment and Cancellation . . . . . . . . . . . . . . . . . . . . . .31
10. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11. Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
12. Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
13. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
14. Market Disruption . . . . . . . . . . . . . . . . . . . . . . . . . . 40
15. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
16. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
17. Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
18. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
19. Additional Borrowers, Guarantors and Security . . . . . . . . . . . . 47
20. Representations and Warranties . . . . . . . . . . . . . . . . . . . . 51
21. Undertakings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
22. Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 73
23. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
24. The Agents, The Hedging Bank and The Arranger . . . . . . . . . . . . 85
25. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
26. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
27. Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
28. Evidence and Calculations . . . . . . . . . . . . . . . . . . . . . . 95
29. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . 95
30. Changes to the Parties . . . . . . . . . . . . . . . . . . . . . . . . 96
31. Disclosure of Information . . . . . . . . . . . . . . . . . . . . . . 99
32. Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
33. Pro Rata Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . 101
34. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
35. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
36. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
37. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
38. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SCHEDULES PAGE
--------- ----
<S> <C> <C>
1. Various Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Part I - Original Borrowers . . . . . . . . . . . . . . . . . . . . . 105
Part II - Original Guarantors . . . . . . . . . . . . . . . . . . . . 106
2. Banks and Commitments . . . . . . . . . . . . . . . . . . . . . . . . 107
3. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . 108
4. Form of Request . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
5. Forms of Accession Documents . . . . . . . . . . . . . . . . . . . . 113
Part I - Substitution Certificate . . . . . . . . . . . . . . . . . . 113
Part II - Borrower Accession Agreement . . . . . . . . . . . . . . . 115
Part III - Guarantor Accession Agreement . . . . . . . . . . . . . . 116
6. Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . 117
7. Calculation of Hedging Liabilities . . . . . . . . . . . . . . . . . 119
8. Calculation of the Additional Cost . . . . . . . . . . . . . . . . . 120
8. Material Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . 122
10. Hedging Documents . . . . . . . . . . . . . . . . . . . . . . . . . . 123
SIGNATORIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
</TABLE>
<PAGE>
1
THIS CREDIT AGREEMENT is dated 9th February, 1998 between:
(1) GETTY IMAGES, INC. a company incorporated under the laws of Delaware,
United States of America with its principal office at 122 South Michigan
Avenue, Suite 900, Chicago, Illinois 60606, United States America (the
"PARENT");
(2) THE COMPANIES listed in Part I of Schedule 1 as borrowers (in this
capacity each an "ORIGINAL BORROWER");
(3) THE COMPANIES listed in Part II of Schedule 1 as guarantors (in this
capacity each an "ORIGINAL GUARANTOR");
(4) MIDLAND BANK PLC as arranger (in this capacity the "ARRANGER");
(5) MIDLAND BANK PLC as the original provider of the Facilities (as defined
below) (in this capacity the "ORIGINAL BANK");
(6) HSBC INVESTMENT BANK PLC as facility agent for the Banks (in this
capacity the "FACILITY AGENT"); and
(7) HSBC INVESTMENT BANK PLC as security agent and trustee for the Banks (in
this capacity the "SECURITY AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement terms defined above or in Clause 22 have the same
meaning when used in this Agreement and:
"ACCOUNTANT'S REPORT" means the report dated 10th September, 1997
prepared by Coopers & Lybrand relating to PhotoDisc.
"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, provided
that the first Accounting Period of the Group shall be deemed to have
commenced on the Closing 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
<PAGE>
2
required to be delivered to the Facility Agent pursuant to this
Agreement, as the context requires.
"ACQUIRED ASSETS" means the shares acquired or to be acquired (either
directly or indirectly) by the Parent or Print Merger, Inc. (in the
case of the acquisition of PhotoDisc by its merger into Print Merger,
Inc.) pursuant to the terms of the Acquisition Agreements and by Getty
U.K. pursuant to the terms of the Allsport Sale and Purchase Agreement,
and all other rights, assets and liabilities (tangible and intangible,
present and future, actual and contingent) acquired or assumed or to be
acquired or assumed by the Parent (or any incorporated Subsidiary
thereof) or Getty U.K. pursuant to the Acquisition Agreements, whether
by merger, transfer or otherwise.
"ACQUISITION AGREEMENTS" means:
(a) the Merger Agreement;
(b) the Scheme of Arrangement;
(c) the Allsport Sale and Purchase Agreement,
and all transfers and other instruments made pursuant to any thereof to
which the Parent, Getty U.K., the Vendors or any member of the Group is a
party.
"ACQUISITION COSTS" means all fees, costs and expenses incurred by the
Parent (or any other member of the Group) in connection with the
negotiation, preparation, execution and registration of the Transaction
Documents.
"ACQUISITIONS" means the acquisition of the Acquired Assets by the
Parent (or a United States incorporated Subsidiary thereof) and Getty
U.K. pursuant to the Acquisition Agreements in the manner and by the
process therein described.
"ADDITIONAL BORROWER" means a member of the Group which becomes a Borrower
in accordance with Clause 19.1.
"ADDITIONAL COST" in relation to each Advance or overdue amount means, for
any Interest Period relating to that Advance or overdue amount:
(i) where such Advance or amount is denominated in Sterling, the MLA
Cost;
(ii) where such Advance or amount is denominated in a currency other
than Sterling, the rate per annum notified by any Bank to the
Facility Agent to be the cost to that Bank of compliance with all
reserve assets, liquidity or cash margin or other requirements of
any applicable monetary or other authority in relation to that
Advance or overdue amount; and
(iii) without double counting, in relation to each Advance or overdue
amount denominated in Dollars made to a U.S. Obligor, the rate
per annum determined from the formula (A)(i) LIBOR applicable to
such Utilisation or amount for the relevant Interest Period
divided by (ii) 1 MINUS the Euro-Dollar Reserve Percentage MINUS
(B) LIBOR applicable to such Utilisation or overdue amount for
that Interest Period.
<PAGE>
3
"ADDITIONAL GUARANTOR" means a member of the Group which becomes a
Guarantor in accordance with Clause 19.2.
"ADVANCE" means the principal amount of each borrowing under this
Agreement from (a) the Tranche A Commitments (a "TRANCHE A ADVANCE") or
(b) the Tranche B Commitments (a "TRANCHE B ADVANCE") or (c) the
Tranche C Commitments (a "TRANCHE C ADVANCE") or, in each case, the
principal 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 of the Facility Agent (as
determined by the Facility Agent) for the purchase of the appropriate
amount of the relevant Optional Currency with Sterling in the London
Foreign Exchange Market in the ordinary course of business at or about
10:00 a.m. on the day in question for delivery two Business Days
thereafter.
"ALLSPORT SALE AND PURCHASE AGREEMENT" means the agreement between
Stephen Michael Powell and others, Getty U.K. and the Parent to be
dated on or about 6th February, 1998 providing, inter alia, for the
purchase by Getty U.K. and the Parent of Allsport Photographic plc.
"ANCILLARY BANK" means any Bank which becomes an Ancillary Bank by
operation of Clause 7.1.
"ANCILLARY COMMITMENT" means, at any time, the maximum principal amount
permitted to be made available under the Ancillary Facility relative
thereto to the extent not cancelled or reduced under this Agreement.
"ANCILLARY FACILITY" means an ancillary facility described in Clause
2.1(d).
"ANCILLARY OUTSTANDINGS" means, at any time in respect of any Ancillary
Bank, the aggregate amount in Sterling (any amounts denominated in
currencies other than Sterling being converted at exchange rates
applicable at the time in the London Interbank foreign exchange market)
of:
(a) all amounts of principal then outstanding under any overdraft,
cheque drawing or other current account facilities;
(b) the percentage weighting notified by the relevant Ancillary Bank
to the Obligors' Agent in accordance with that Ancillary Bank's
general credit policy of the gross amounts payable to the
Ancillary Bank under any contracts entered into for forward
foreign exchange but which have not yet matured;
(c) the maximum face amount (excluding amounts stated to be in
respect of interest) of all guarantees, bonds and letters of
credit then outstanding under any guarantee, bonding or letter of
credit facilities; and
<PAGE>
4
(d) in respect of any other facility or financial accommodation such
other amount as the relevant Ancillary Bank (acting reasonably
and in consultation with the Facility Agent and the Obligors'
Agent) may determine fairly represents the aggregate exposure at
such time of that Ancillary Bank,
in each case made available under the Ancillary Facility provided by such
Ancillary Bank.
"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, and in each case any variation to such accounting
principles and practices which is not material or, if material, has
been agreed in writing by the Majority Banks.
"APPROVED BANK" means in England and Wales and the United States of
America any bank which is authorised to conduct banking business in
such jurisdiction, which has been approved by the Facility Agent for
the purposes of this definition and which has been given and has
acknowledged any and all notices required by the Security Documents,
and such approval (subject to the giving and, where required as
aforesaid, acknowledgement of such notices) is given:
(a) for accounts of any Obligor held in England or Wales, in respect of
Midland Bank plc; and
(b) for accounts of any Obligor held in the United States of America, in
respect of Marine Midland, Inc..
"AUDITORS" means Coopers & Lybrand or such other firm of independent
public accountants of international standing which is appointed in
compliance with Clause 21.29(b), to audit the annual Accounts of the
Parent.
"AVAILABLE FACILITY AMOUNT" means the amount of the Tranche C Commitments
(taking into account any reduction in the Tranche C Commitment of any
Ancillary Bank provided for in Clause 2.2(f)) less the Original Sterling
Amount of the then outstanding Tranche C Utilisations, at such time taking
into account any Tranche C Utilisations scheduled to be made, repaid or
prepaid assuming that the same occurs when due.
"AVAILABILITY DATE" means the date on which the Tranche A Advance and the
Tranche B Advance are repaid in full.
"AVAILABILITY PERIOD" means the period from the date of this Agreement
to (a) in respect of the Tranche A Commitments and the Tranche B
Commitments, close of business in London on 27th February, 1998 (the
"TRANCHE A/B AVAILABILITY PERIOD"), and (b) in respect of the Tranche C
Commitments, close of business in London on the earlier of the
Availability Date and the date falling 364 days after the date of this
Agreement, subject to the provisions of Clause 2.6 (the "TRANCHE C
AVAILABILITY PERIOD").
<PAGE>
5
"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 30 or which assumes rights and obligations pursuant to a
Substitution Certificate, and any successor or successors in title to
any of the foregoing, provided that upon (i) termination in full of all
the Commitments of any such bank, trust, fund or financial institution,
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, 1996, and unaudited consolidated management
accounts for the period 1st January to 30th September, 1997, of
PhotoDisc;
(b) the audited consolidated accounts dated as at and for the year
ending 31st December, 1996, and unaudited consolidated management
accounts for the year ending 31st December, 1997 for Getty U.K.;
(c) the audited consolidated accounts dated as at and for the year
ending 30th November, 1996, and unaudited consolidated management
accounts for the year ending 30th November, 1997 for Allsport
Photographic plc 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 any indebtedness (including any interest and other
charges relating thereto) in respect of:
(a) moneys borrowed or raised and debit balances at banks;
(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;
<PAGE>
6
(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,
provided that for the purposes of the calculation of Consolidated Total
Borrowings items falling within paragraph (g) shall be excluded, and
for the purposes of Clause 23.1(d) 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) a day (other than a Saturday or a Sunday) on which banks and foreign
exchange markets are open for business in London; and
(b) in respect of a day on which a payment or other transaction in
Dollars is required under this Agreement a day (not being a
Saturday or Sunday) on which banks and foreign exchange markets
are open for business in New York; and
(c) in respect of a day on which a payment or other transaction
involving an Optional Currency is required under this Agreement a
day (not being a Saturday or Sunday) on which banks and foreign
exchange markets are open for business in the principal financial
centre of the country of that Optional Currency.
"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 Investor Services Inc.) and A-1
(Standard & Poors Corporation) and are not issued or guaranteed
by any member of the Group; and
<PAGE>
7
(c) such other securities (if any) as are approved as such in writing
by the Facility Agent.
"CASH PRICE" means the cash-paid element of the PhotoDisc Merger
Consideration.
"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" means the completion of all of the Acquisitions.
"CLOSING DATE" means the date on which Closing occurs.
"COMMITMENT" in relation to a Bank means:
(a) when designated "TRANCHE A" or "Tranche B" or "TRANCHE C", as the
case may be, the amount appearing and designated as such against
that Bank's name in Schedule 2 or in the Substitution Certificate
or other document by which it became party to or acquired rights
under this Agreement;
(b) where designated "ANCILLARY" the amount of a Bank's Tranche C
Commitment converted into a Commitment so designated pursuant to
Clause 7;
(c) without any such designation, a Bank's Tranche A Commitment or
Tranche B Commitment or Tranche C Commitment or Ancillary
Commitment, as the context requires;
in each case as reduced or increased from time to time pursuant to any
Substitution Certificate or other transfer pursuant to Clause 30 to which
such Bank is party, and to the extent not otherwise cancelled, reduced or
terminated under this Agreement (collectively the "TOTAL COMMITMENTS").
"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.
"DEUTSCHMARKS" and "DM" means the lawful currency for the time being of
Germany.
"DISCLOSURE LETTER" means the letter (if any) designated the
"Disclosure Letter" of even date herewith from the Parent to the
Facility Agent counter-signed by the Facility Agent for the
<PAGE>
8
purposes of identification which makes specific disclosures against
certain of the representations and warranties set out in Clause 20.
"DOLLARS" and "U.S.$" means the lawful currency for the time being of the
United States of America.
"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 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.
<PAGE>
9
"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.
"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).
"EVENT OF DEFAULT" means an event specified as such in Clause 23.1.
"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 (including the G & Eye device) and including any future
trade names, trade marks and service marks incorporating "GETTY",
"GETTY COMMUNICATIONS" or "GETTY IMAGES" or the aforementioned design
or device.
"EXECUTIVE" means each of Jonathan Klein, Mark Torrance and Mark Getty or
their respective replacements from time to time.
"EXECUTIVE OFFICER" means either of the Chief Executive Officer and the
Chief Financial Officer.
"EXISTING FACILITIES" means the term loan facility made available by
Midland Bank plc to Getty U.K. pursuant to a loan agreement dated 14th
March, 1995 and the term loan facility made available by Midland Bank
plc to, inter alios, Getty U.K. pursuant to a loan agreement dated 2nd
April, 1996.
"FACILITY" means each and any of:
(a) the term loan facility referred to in Clause 2.1(a) (the "TRANCHE A
FACILITY");
(b) the term loan facility referred to in Clause 2.1(b) (the "TRANCHE B
FACILITY");
(c) the revolving credit facility referred to in Clause 2.1(c) (the
"TRANCHE C FACILITY"); and
(d) any Ancillary Facility,
<PAGE>
10
(together the "FACILITIES").
"FACILITY OFFICE" means in relation to any Bank the office specified as
such in Schedule 2 or in the Substitution Certificate by which such
Bank became a party hereto or such other office 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 LETTERS" means the letters referred to in Clauses 25.1 and 25.3.
"FINAL REPAYMENT DATE" means 31st March, 2001.
"FINANCE DOCUMENTS" means this Agreement, the Fee Letters, the
Substitution Certificates, the Borrower Accession Agreements, the
Guarantor Accession Agreements, the Security Documents, the Hedging
Documents, any documents constituting or evidencing amounts outstanding
under any Ancillary Facility and any other document designated as such
by the Facility Agent and the Parent.
"FINANCE PARTY" means the Arranger, each Bank, each Ancillary Bank, the
Hedging Bank, the Facility Agent or the Security Agent (together the
"FINANCE PARTIES").
"FINANCIAL FORECASTS" means the document of the same title in the agreed
form.
"FRENCH FRANCS" and "FFR" means the lawful currency for the time being of
France.
"GETTY IMAGES" means Getty Images Limited, a company incorporated in
England under registered number 948785.
"GETTY U.K." means Getty Communications plc, 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 Midland Bank plc and/or HSBC Investment Bank plc
in its capacity as the provider of hedging facilities pursuant to the
Hedging Documents.
"HEDGING DOCUMENTS" means the agreements described more particularly in
Schedule 10 and any and all currency or interest rate swap and/or
interest cap and/or other hedging agreements entered into or to be
entered into by any Obligor with the Hedging Bank as may hereafter be
agreed in writing between the Parent, the Hedging Bank and the Facility
Agent to constitute the Hedging Documents in each case as, and
including, any instrument pursuant to which the same are novated,
varied, supplemented or amended from time to time.
"HEDGING LIABILITIES" means all present and future liabilities (actual
or contingent) payable or owing by the Obligors or any of them to the
Hedging Bank or any of them under or in
<PAGE>
11
connection with the Hedging Documents, whether or not matured and
whether or not liquidated, together in each case with:
(a) any novation, deferral or extension of any of those liabilities
permitted by the terms of this Agreement;
(b) any claim for damages or restitution arising out of, by reference
to or in connection with any of the Hedging Documents;
(c) any claim flowing from any recovery by an Obligor or a receiver
or liquidator thereof or any other person of a payment or
discharge in respect of any of those liabilities on grounds of
preference or otherwise; and
(d) any amounts (such as post-insolvency interest) which would be
included in any of the above but for any discharge,
non-provability, unenforceability or non-allowability of the same
in any insolvency or other proceedings.
"HOLDING COMPANY" means an entity of which another person is a Subsidiary.
"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 21.11(ii)
is increased, with the consent of the Majority Banks, above U.S.
$2,000,000)) and any net payment (or, if appropriate in the
context, receipt) under any interest rate hedging agreement or
instrument (including without limitation under the Hedging
Documents), 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) and any up-front premium or front-end fee payable pursuant
to any Hedging Document.
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12
"INTEREST DATE" means, in relation to any Advance or any overdue
amount, the last day of an Interest Period relating thereto.
"INTEREST PERIOD" means, in relation to any Advance, each period
determined in accordance with Clause 11.1 and, in relation to any
overdue amount, each period determined in accordance with Clause 10.3.
"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 overdue amount for any Interest
Period relative thereto, means:
(i) the annual rate of interest which appears on Telerate page 3750
or any equivalent successor to any such page, as appropriate, (as
determined by the Facility Agent) (the "TELERATE SCREEN") at or
about 11.00 a.m. (London time) two Business Days before the
commencement (or in the case of an Advance or overdue amount
denominated in Sterling, on the first day) of such Interest
Period, as being the interest rate offered in the London
Interbank Eurocurrency Market for the offering of deposits in the
currency of such Advance for a period comparable to such Interest
Period; and
(ii) (if the relevant rate does not appear on the Telerate Screen for
the purposes of paragraph (i) or the Facility Agent determines
that no rate for a period of comparable duration to the relevant
Interest Period appears on the Telerate Screen) the arithmetic
mean (rounded upward to four decimal places) of the rates
supplied to the Facility Agent at its request, quoted by the
Reference Banks to leading banks in the London Interbank
Eurocurrency Market at or about 11.00 a.m. (London time) two
Business Days before the commencement (or in the case of an
Advance or overdue amount denominated in Sterling, on the first
day) of such Interest Period for the offering of deposits in the
currency of such Advance for a period comparable to its Interest
Period, provided that if any of the Reference Banks fails to
supply such offered rate to the Facility Agent by 1.00 p.m.
(London time) on the required date, "LIBOR" for the relevant
Interest Period shall be determined on the basis of the
quotations of the remaining Reference Banks.
"MAJORITY BANKS" means, at any time, Banks the aggregate of whose
Commitments (ignoring for this purpose any reduction therein effected by
Clause 2.2(f)):
(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.
"MARGIN" means:
(a) in the case of the Tranche A Advance or a Tranche B Advance, one
point two five per cent. (1.25%) per annum, subject to the
operation of Clause 10.5; and
(b) in the case of a Tranche C Advance, one point two five per cent.
(1.25%) per annum.
<PAGE>
13
"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 material obligations under any of the Finance
Documents, or (ii) the ability of the Parent to comply with its
obligations under Clause 22, 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 Transaction Documents not being legal,
valid and binding on, and enforceable substantially in accordance
with its terms against, any party to that Transaction 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 each Borrower (other than the Parent),
Print Merger, Inc., after its merger with PhotoDisc Inc. pursuant to
the Merger Agreement, and each member of the Group (a) whose pre-tax
profits and/or the pre-tax profits of whose trading as agent for other
members of the Group represent five per cent. or any greater percentage
of the Consolidated EBITDA of the Group in any annual Accounting
Period, or (b) the book value of whose gross assets is five per cent.
or more of the consolidated gross assets of the Group, or (c) whose
aggregate turnover and/or the turnover of whose trading activities as
agent for other members of the Group in any annual Accounting Period,
calculated on a consolidated basis and excluding VAT and/or sales tax,
have been five per cent. or more of the turnover (similarly calculated)
of the Group, and for this purpose:
(i) 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 or turnover, as the case may be,
of it and its Subsidiaries and in accordance with the Applicable
Accounting Principles;
(ii) the calculation shall be made by reference to:
(I) the latest accounts of the relevant company (or, as the
case may be, a consolidation of the accounts of it and its
Subsidiaries) used for the purpose of the then latest
unaudited monthly, quarterly or audited annual consolidated
Accounts of the Group delivered to the Facility Agent under
Clause 21.2; and
(II) those unaudited monthly, quarterly or audited annual
consolidated Accounts (as the case may be) of the Group;
(iii) each member of the Group named in Schedule 9 or, if later, in the
latest annual list of Material Subsidiaries provided by the
Parent to the Facility Agent pursuant to Clause 21.2(d)(i)(B)
shall be deemed to be a Material Subsidiary until either the next
list of Material Subsidiaries is delivered to the Agent pursuant
to such Clause or it is shown to the Facility Agent's reasonable
satisfaction not to be a Material Subsidiary by reference to the
financial information referred to in paragraph (ii) above and on
the basis of the tests set out in this definition; and
<PAGE>
14
(iv) any member of the Group which is not a Material Subsidiary and to
which any Material Subsidiary transfers in any annual Accounting
Period any fixed assets in any transaction or series of
transactions (related or not) which transfer would result in the
transferee company meeting the test referred to in (b) above
(calculated by reference to the last set of accounts of the
relevant transferee company referred to in paragraph (ii)(I)
above but taking into account such transfer) shall be deemed to
be a Material Subsidiary (and the Material Subsidiary from which
the assets were transferred 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.
"MERGER" means the merger of PhotoDisc and Print Merger, Inc. to be
effected in accordance with the Merger Agreement.
"MERGER AGREEMENT" means the agreement among Getty U.K., PhotoDisc, Print
Merger, Inc., and the Parent dated 15th September, 1997 providing, inter
alia, for the merger of PhotoDisc and Print Merger, Inc.
"MLA COST" means the cost imputed to the Banks of compliance with the
Mandatory Liquid Assets requirements of the Bank of England during an
Interest Period, expressed as a rate per annum and determined in
accordance with Schedule 8.
"MULTIEMPLOYER PLAN" means a Plan which is a multiemployer plan as
defined in section 3(37) or 4001(a)(3) of ERISA.
"NON-OBLIGOR" means each member of the Group which is not an Obligor.
"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.
"OPTIONAL CURRENCY" means Dollars, Deutschmarks or French Francs.
"ORIGINAL BORROWERS" means each of those companies specified in
Schedule 1 Part I.
"ORIGINAL STERLING AMOUNT" means in relation to any amount:
(a) (if denominated in Sterling) the principal amount which is, or is
to be, outstanding or drawn; or
(b) (if denominated in an Optional Currency) the Sterling 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 Utilisation 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.
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15
"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.
"PENSION PLAN" means a Plan that is subject to Title IV of ERISA.
"PHOTODISC" means PhotoDisc, Inc., a corporation incorporated under the
laws of Washington, U.S.A.
"PHOTODISC CLOSING ACCOUNT" means the account in the name of the Parent
at Wells Fargo Bank, San Francisco into which the Tranche A Advance and
other monies available to the Parent are to be paid for the purposes of
Closing.
"PHOTODISC MERGER CONSIDERATION" means the total consideration
(including, without limitation, all amounts paid by PhotoDisc to
holders of options to subscribe for PhotoDisc stock on the Closing Date
pursuant to PhotoDisc's offer to repurchase certain such options) to be
paid on Closing to the Vendors under the Merger Agreement in respect of
the merger of Print Merger, Inc. and PhotoDisc provided for therein.
"PLAN" means an "employee pension benefit plan" within the meaning of
Section 3(2) of ERISA.
"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 prospectus of the Parent dated 7th January, 1998
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 pursuant
to the Merger and the Scheme of Arrangement.
"QUALIFYING BANK" means a bank as defined in Section 840A of the Income
and Corporation Taxes Act 1988 (or any statutory re-enactment or
modification thereof in substantially the same form and context as at
the date hereof) which is within the charge to corporation tax as
regards interest payable or paid to it under the Finance Documents.
"RECOGNISED BANK" means in respect of Utilisations made available to
any Borrower, 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 such 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):
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16
(A) at the time the bank, fund, trust or financial institution
becomes a party to this Agreement, incorporated in a
country with which the jurisdiction of incorporation of
such Borrower has an appropriate double taxation treaty
which provides at the date hereof (or in the case of a
transferee under Clause 30, at the date of transfer) 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 Interest 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 under such treaty (or would have
done so but for any failure by such Borrower to comply with
its obligations under Clause 13.5).
"REFERENCE BANKS" means, subject to Clause 30.4, the principal London
offices of Midland Bank plc and of such other Banks as may become
Reference Banks pursuant to that Clause.
"REPAYMENT DATE" means each date identified in Clause 8.1 or Clause 8.2.
"REPAYMENT INSTALMENT" means each Tranche A Repayment Instalment (as
defined in Clause 8.1) and each Tranche B Repayment Instalment (as
defined in Clause 8.2).
"REPORTABLE EVENT" shall have the meaning set forth in Section 4043(b)
of ERISA as to which the PBGC has not by regulation waived the notice
requirement of Section 4043(a) of ERISA.
"REPORTS" means each of:
(a) the Accountant's Report;
(b) the legal due diligence report dated 9th September, 1997,
prepared by Shearman & Sterling with respect to PhotoDisc Inc.
and its Subsidiaries;
(c) the taxation letter headed "Interest on Midland Bank Debt" dated
28th January, 1998 prepared by Shearman & Sterling;
(d) the legal due diligence report entitled "Project Picasso legal
review" dated 4th February, 1998, prepared by Clifford Chance; and
(e) the financial due diligence report entitled "Preliminary Review
of the Financial Affairs of Picasso" prepared by Coopers &
Lybrand dated 15th September, 1997,
in each case, in the agreed form.
"REQUEST" means a request made by the Obligors' Agent on behalf of a
Borrower for a Utilisation, substantially in the form of Schedule 4.
<PAGE>
17
"RESERVATIONS" means the principle that equitable remedies are remedies
which may be granted or refused at the discretion of the court, the
limitation of enforcement by laws relating to bankruptcy, insolvency,
liquidation, reorganisation, court schemes, moratoria, administration
and other laws generally affecting the rights of creditors, the time
barring of claims under the Limitation Acts, and the possibility that
an undertaking to assume liability for or to indemnify a person against
non-payment of U.K. stamp duty may be void, defences of set-off or
counterclaim and similar principles.
"SCHEME OF ARRANGEMENT" means the process pursuant to Section 425
Companies Act 1985 whereby shares in Getty U.K. are exchanged for
shares in the Parent on or before the Closing Date.
"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.
"STERLING" and "L" means the lawful currency for the time being of the
United Kingdom.
"STERLING EQUIVALENT" means, in relation to all amounts expressed or
denominated in an Optional Currency, the equivalent thereof in Sterling
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 Sterling, such amount).
"STRUCTURE MEMORANDUM" means the memorandum and corporate chart in the
agreed form.
"SUBSIDIARY" means in relation to any person, 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 financial statements 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 financial
statements 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.
"SUBSTITUTION CERTIFICATE" has the meaning given to it in Clause 30.3.
"TARGET GROUP" means (a) each of PhotoDisc, PhotoDisc Europe Limited,
PhotoDisc Deutschland GmbH, PhotoDisc International, Inc., and
PhotoDisc Australia Pty Limited and their respective Subsidiaries,
taken together, and (b) Allsport Photographic plc, Allsport Photography
(US) Inc. and All-sport (UK) Limited and their respective Subsidiaries,
taken together.
"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).
<PAGE>
18
"TRANSACTION DOCUMENTS" means the Finance Documents and the Acquisition
Agreements.
"U.K. GROUP" means Getty U.K. and its Subsidiaries from time to time.
"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. 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.
"UTILISATION" means a utilisation under this Agreement of the Tranche A
Facility (a "TRANCHE A UTILISATION") and/or a utilisation under this
Agreement of the Tranche B Facility (a "TRANCHE B UTILISATION") and/or
a utilisation under this Agreement of the Tranche C Facility (a
"TRANCHE C UTILISATION").
"UTILISATION DATE" means in relation to each Utilisation, the date
specified as such in the relative Request or, on and after the making
and/or issue thereof pursuant to such Request, the date on which it was
made and/or issued.
"VENDORS" means, in the context of the Allsport Sale and Purchase
Agreement, the persons defined as Sellers therein and, in the context
of the Merger Agreement, the common and preferred stockholders of
PhotoDisc and each holder of options for shares therein.
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;
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;
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19
(iv) a Transaction Document or any other document is a reference
to that Transaction 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
Substitution 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 grant (or in the case
of paragraph (d) below each Ancillary Bank grants):
(a) TRANCHE A FACILITY: A term loan facility under which the Banks
shall, when requested by the Obligors' Agent pursuant to a
Request, make to the Parent one Tranche A Advance in Dollars in
an amount not exceeding the Tranche A Commitments;
(b) TRANCHE B FACILITY: A term loan facility under which the Banks
shall, when requested by the Obligors' Agent pursuant to a
Request, make to Getty U.K. one Tranche B Advance (drawn
initially in Sterling) in an amount not exceeding the Tranche B
Commitments;
(c) TRANCHE C FACILITY: A revolving credit facility under which the
Banks shall, when requested by the Obligors' Agent pursuant to a
Request, make to the relevant Borrower, Tranche C Advances
denominated in Sterling or an Optional Currency up
<PAGE>
20
to an aggregate amount outstanding at any time the Original
Sterling Amount of which does not exceed the aggregate of the
Tranche C Commitments; and
(d) ANCILLARY FACILITIES: Ancillary facilities under which each
Ancillary Bank may provide to certain Borrowers:
(i) overdraft, cheque drawing and other current account
facilities; and/or
(ii) forward foreign exchange facilities; and/or
(iii) guarantee, bonding, documentary or stand-by letter of
credit facilities; and/or
(iv) such other facilities or financial accommodation as the
Obligors' Agent and the relevant Ancillary Bank may agree,
in an aggregate amount outstanding at any time not exceeding (A)
its Ancillary Commitment, plus (B) without any obligation on any
Ancillary Bank to make the same available, in respect of non-cash
advance facilities only an aggregate amount not exceeding
L3,250,000 outstanding at any time under all Ancillary Facilities.
If facilities of the type referred to in (B) above are made
available by any Ancillary Bank, such facilities shall be made so
available under the documents evidencing the Ancillary
Facilities.
2.2 LIMITATIONS
(a) The Tranche A Advance and the Tranche B Advance must be drawn down at
Closing.
(b) No Tranche B Advance may be made unless and until the Tranche A Advance
has been, or is on the same Utilisation Date being, made.
(c) No Tranche C Utilisation (and no utilisation of any Ancillary Facility)
may be made until the Tranche A Advance and the Tranche B Advance have
been, or are on the same Utilisation Date being, made.
(d) No more than five Tranche C Utilisations may be outstanding at any time.
(e) No Borrower (other than Getty U.K.) may utilise the Tranche C Facility
unless it is at the relevant Utilisation Date a subsidiary of Getty U.K.
(f) The Tranche C Commitment of each Ancillary Bank shall be reduced pro
tanto by the amount of its Ancillary Commitment but shall automatically
increase pro tanto upon any amount of its Ancillary Commitment ceasing
to be available to the relevant Borrowers.
(g) The aggregate of the Original Sterling Amount of the outstanding
Tranche C Utilisations and the Sterling Equivalent of the Ancillary
Outstandings at any time may not exceed the Tranche C Commitments then
in effect (ignoring for this purpose the effect of Clause 2.2(f)).
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21
(h) Notwithstanding Clause 2.1(a) above, in the event that the Cash Price
is less than U.S. $24,000,000, the maximum amount of the Tranche A
Commitments that may be drawn at Closing shall be reduced to an amount
equal to the Cash Price.
2.3 NATURE OF A FINANCE PARTY'S RIGHTS AND OBLIGATIONS
(a) No Bank is obliged to participate in the making of any Utilisation (i)
in the case of the Tranche A Advance or a Tranche B Advance, if its
participation in such Advance would exceed the amount of its Tranche A
Commitment or Tranche B Commitment, as the case may be, and (ii) in the
case of a Tranche C Utilisation, if to do so would cause the aggregate
of its participation in the Tranche C Utilisations outstanding under
this Agreement to exceed its Tranche C Commitment.
(b) 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.
(c) 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.
(d) (i) The obligations of each Bank under this Agreement in respect of
each Advance to be made available by it under this Agreement may
be discharged by procuring that an Affiliate (which is itself a
party to this Agreement) of such Bank lends or otherwise makes
available to the relevant Borrower in accordance with and subject
to the terms of this Agreement the amount which such Bank is
obliged to lend or so make available hereunder.
(ii) The provisions of Clauses 10.1 (insofar as any Additional Cost is
incurred by such Affiliate), 13, 14, 15, 16, 30 and 32 shall
apply to any such Affiliate of any Bank and to any Advance made
by any such Affiliate as if such Affiliate were a Bank.
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 and notices pursuant to Clause 11.1), 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
<PAGE>
22
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.
(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 EXTENSION OF TRANCHE C AVAILABILITY PERIOD
Without prejudice to the duration of the Tranche C Availability Period
specified in Clause 1.1, the Facility Agent agrees that it shall
consult with the Parent not less than one month before the expiry of
the Tranche C Availability Period with a view to arranging terms
satisfactory to each of the Banks with a Tranche C Commitment and to
the Parent for an extension to the Tranche C Availability Period.
Nothing in this Clause 2.6 shall oblige any Bank to agree to extend the
Tranche C Availability Period or shall impose any obligation on the
Facility Agent beyond consultation with the Parent as aforesaid.
3. PURPOSE
(a) The proceeds of the Tranche A Advance shall be applied in or towards
financing payment of the Cash Price payable at Closing under the Merger
Agreement and any Acquisition Costs.
(b) The proceeds of the Tranche B Advance shall be applied in or towards
financing repayment of all amounts due from Getty U.K. or Getty Images
to Midland Bank plc under the Existing Facilities, and subject to
repayment in full of all such amounts for the general corporate
purposes of the U.K. Group.
(c) The proceeds of the Tranche C Utilisations shall be applied in or
towards financing the general working capital requirements of members
of the U.K. Group and/or intercompany loans to other members of the
Group (provided that the making of such intercompany loan is permitted
by Clause 21.10 and the borrowing of such intercompany loan is
permitted by Clause 21.17).
<PAGE>
23
(d) Each Borrower undertakes that no Utilisation shall be used in any way
which would be illegal under or cause the invalidity or
unenforceability of any Finance Document under any applicable law.
(e) Without affecting the obligations of any Obligor in any way, no Finance
Party is bound to monitor or verify the application of any Utilisation.
4. CONDITIONS PRECEDENT
4.1 CONDITIONS PRECEDENT TO FIRST UTILISATION
The obligations of each Finance Party to the Obligors under this
Agreement are subject to the conditions precedent that:
(a) DOCUMENTS: the Facility Agent shall have received all of the
documents set out in Part I of Schedule 3 in the agreed form, and
each of the documents referred to in Part I of Schedule 3 as
being certified shall be certified on behalf of the party
providing that document by one of its directors or, in the case
of any U.S. Obligor, by one of its officers as being a true,
complete and up to date copy and in full force and effect as at
the date such document is required to be delivered;
(b) ACQUISITIONS: the Facility Agent shall be satisfied that (i)
pursuant to the Scheme of Arrangement not less than 100% of the
ordinary shares in Getty U.K. are or will immediately after
Closing be legally and beneficially owned by the Parent (and the
Shares to be issued at Closing to the transferors of shares in
Getty U.K. have been issued to and are registered in their
respective names in the books of the Parent), (ii) at Closing all
of the stock of Print Merger, Inc. will be owned by the Parent,
(iii) pursuant to the Merger Agreement, upon Closing PhotoDisc
will be merged into Print Merger, Inc. with Print Merger, Inc. as
the surviving entity and all of the stock of PhotoDisc will be
cancelled and replaced by rights of the holders to receive their
share of the PhotoDisc Merger Consideration and (iv) pursuant to
the Allsport Sale and Purchase Agreement not less than 100% of
the ordinary shares in Allsport Photographic plc are or will
immediately after Closing be legally and beneficially owned by
Getty U.K.;
(c) LITIGATION: the Original Bank shall be satisfied that:
(i) no litigation which is current, pending or threatened may
have a material adverse effect on the business, assets or
financial condition of the Parent, the Target Group, any
Obligor or the Group; and
(ii) the litigation commenced by Digital Stock Corporation in
San Diego and any related actions against Getty
Communications plc have been irrevocably withdrawn and
settlement in relation thereto is full and final, evidenced
in writing and the cost of settlement thereof to the
members of the Group aggregates less than U.S. $2,000,000;
<PAGE>
24
(d) CLOSING: the Facility Agent shall be satisfied that:
(i) the proceeds of the Tranche A Advance and cash standing to
the credit of the PhotoDisc Closing Account are at least
equal to the aggregate of (A) the amount required to be
paid in cash by the Parent and/or PhotoDisc to the Vendors
at Closing pursuant to the Acquisition Agreements
(including the Cash Price) in respect of the Acquisition of
PhotoDisc, and (B) the Acquisition Costs;
(ii) the proceeds of the Tranche B Advance and cash of Getty
U.K. are at least equal to the aggregate amount of
indebtedness under the Existing Facilities and any other
Borrowings required to be repaid by the relevant Borrower
at Closing in order that Clause 21.10 shall be complied
with and the cash element of the consideration payable at
Closing to the Vendors under the Allsport Sale and Purchase
Agreement;
(iii) the obligations of all the parties to the Transaction
Documents (other than the Finance Documents) are
unconditional save to the extent that any of those
obligations are conditional upon the making of a
Utilisation or Utilisations under this Agreement;
(iv) Getty Investments LLC has subscribed for shares in the
Parent in cash in an aggregate amount of U.S.$28,000,000;
(e) AVAILABILITY: unless otherwise agreed in writing by the Banks the
Closing Date must occur by no later than 27th February, 1998;
(f) MATERIAL ADVERSE CHANGE: no event or series of events has
occurred or come to light which in the opinion of the Original
Bank has or is reasonably likely to have a material adverse
effect on the business, assets or financial condition of the
Parent or the UK Group (since 31st December, 1997) or the Target
Group (since 30th September, 1997) (and in the case of Allsport
Photographic plc or its Subsidiaries, since 31st December, 1997);
(g) MARKET CHANGE: since the date of this Agreement there has not
been any material change in the financial markets of the United
Kingdom or the United States or any material fluctuation in the
exchange rates relating to the currencies of such countries or
the financial condition of any Obligor which, in the opinion of
the Original Bank, would make it impracticable to proceed with
the transactions contemplated by the Finance Documents or would
materially and adversely impact upon the ability of any Borrower
to repay (and pay the interest on) any Advance to be made to it
hereunder or upon the ability of the Arranger to syndicate the
Facilities.
(h) ENCUMBRANCES: the Facility Agent shall be satisfied that any
Encumbrances over all or any material portion of PhotoDisc's
assets have been released before Closing and the relevant filings
recording such release have been made.
<PAGE>
25
4.2 CONDITIONS PRECEDENT TO EACH UTILISATION
The obligations of the Finance Parties in respect of each Utilisation
are subject to the further condition precedent that both at the date of
the Request for such Utilisation and at the Utilisation Date therefor:
(a) in respect of each Tranche C Advance requested to be made to a
Borrower which is matched by a Tranche C Advance of the same (or
a greater) amount which is repaid by such Borrower under Clause
8.3 on the proposed Utilisation Date for such Advance (a
"ROLLOVER UTILISATION"), no Event of Default has occurred and is
continuing or would result from the making of such Rollover
Utilisation which has not been waived;
(b) in respect of each Utilisation (other than a Rollover
Utilisation) the representations and warranties in Clause 20 to
be repeated on those dates in accordance with Clause 20.2 are
correct and will be correct immediately after the Utilisation is
made and no Default has occurred and is continuing or would
result from the making of such Utilisation which has not been
waived.
5. DRAWDOWN
5.1 RECEIPT OF REQUESTS
A Borrower may make a Utilisation if the Facility Agent receives from
the Obligors' Agent, not later than 11.00 a.m. three Business Days
before the proposed Utilisation Date (or, in respect of Utilisations to
be made at Closing, by such later time as the Facility Agent may
agree), a Request complying with Clause 5.2.
5.2 COMPLETION OF REQUESTS
Each Request will specify the name of the relevant Borrower and:
(a) the Utilisation Date, being a Business Day in the relevant
Availability Period;
(b) whether the Utilisation is the Tranche A Advance, the Tranche B
Advance or a Tranche C Utilisation;
(c) the amount of the Utilisation being, (I) in the case of the
Tranche A Advance an amount less than or equal to the aggregate
amount of the Tranche A Commitments, (II) in the case of the
Tranche B Advance an amount less than or equal to the aggregate
amount of the Tranche B Commitments and (III) in the case of a
Tranche C Utilisation, an Original Sterling Amount not less than
L1,000,000 and if more an integral multiple of L500,000 (or
equivalent) or the then Available Facility Amount, provided
always that no Requested Amount for a Tranche C Utilisation may
exceed the then Available Facility Amount;
(d) the duration of its (or its first) Interest Period;
(e) the currency of the Advance requested (being Dollars in the case
of the Tranche A Advance, Sterling in the case of a Tranche B
Advance made on the Closing Date and an Optional Currency or
Sterling in the case of a Tranche C Advance);
<PAGE>
26
(f) payment instructions (being, in the case of a Tranche A Advance
instructions to pay to the Closing Accounts and in the case of a
Tranche B Advance, instructions to pay Midland Bank plc).
The Facility Agent shall promptly notify each Bank of the details of
the requested Utilisation and, in the case of an Advance, the currency
and amount of its participation in such Advance.
5.3 AMOUNT OF EACH BANK'S PARTICIPATION IN ADVANCE
The amount of a Bank's participation in any Advance will be the
proportion of the Advance which its Commitment bearing the same
designation bears to the aggregate of the Banks' Commitments bearing
such designation on the date of receipt of the relevant Request.
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 Utilisation Date.
6. DENOMINATION OF TRANCHE B ADVANCES
6.1 SELECTION
(a) The Obligors' Agent may select the currency of a Tranche B Advance for
an Interest Period in either the relevant Request or, if such Advance
is outstanding, a notice received by the Bank not later than 11.00 a.m.
on the third Business Day before the commencement of that Interest
Period. In the latter case, the Obligors' Agent may specify whether
that Loan is to be denominated in more than one currency, and, if so,
the amount in Sterling of each such currency (being an Original
Sterling Amount of a minimum of L1,000,000 or the balance of the
Tranche B Advance, as the case may be, if more).
(b) If a Borrower fails to give a notice in respect of an outstanding
Tranche B Advance in accordance with paragraph (a) above, that Tranche
B Advance shall remain denominated for its next Interest Period in the
same currency in which it is then denominated.
(c) Each part of a Tranche B Advance which is to be denominated in a
different currency from any other part of that Tranche B Advance shall
be treated as a separate Tranche B Advance.
6.2 DRAWDOWNS
The first drawdown under Tranche B shall be made in Sterling. If a
Tranche B Advance is to be drawn down in an Optional Currency, the
amount of that Tranche B Advance will be determined by converting into
that Optional Currency the Original Sterling Amount of that Tranche B
Advance on the basis of the Agent's Spot Rate of Exchange three
Business Days before its Utilisation Date.
6.3 CHANGE OF CURRENCY
(a) If a Tranche B Advance is to be continued during its next Interest
Period in a different currency (the "NEW CURRENCY") from that in which
it is currently denominated (the "OLD
<PAGE>
27
CURRENCY"), such Tranche B Advance shall be repaid by the relevant
Borrower in full at the end of its current Interest Period in the old
currency and, subject to the terms of this Agreement, shall be
re-advanced by the Banks in the proportions which their respective
Tranche B Commitments bear to the aggregate Tranche B Commitments
forthwith in the new currency.
(b) If the new currency is Sterling, the amount of that Tranche B Advance
will be the Original Sterling Amount of that Tranche B Advance.
(c) If the new currency is an Optional Currency, the amount of that Tranche
B Advance will be determined by converting into the new currency the
Original Sterling Amount of that Tranche B Advance on the basis of the
Agent's Spot Rate of Exchange three Business Days before the
commencement of that Interest Period.
(d) The Facility Agent is authorised and requested to apply the aggregate
amount in the new currency advanced to the Facility Agent by the Banks
as aforesaid in or towards purchasing, for value on that Interest Date,
an amount in the old currency sufficient to discharge the repayment
obligation of the relevant Borrower under Clause 6.3(a) and, for value
on such Interest Date, to apply the amount in the old currency so
purchased towards the discharge of that obligation. If the aggregate
amount in the new currency re-advanced by the Banks as aforesaid
exceeds the amount in the new currency required to effect that
purchase, the Facility Agent shall pay the excess to the relevant
Borrower in the new currency. If the amount in the old currency
required to be repaid by the relevant Borrower exceeds the amount in
the old currency so purchased, the Borrower shall pay the excess to the
Facility Agent for the Banks participating in such Tranche B Advance in
the old currency.
(e) If the Facility Agent determines that it is or will be unable to effect
any such purchase, it shall so notify the relevant Borrower and the
provisions of paragraph (d) above shall not apply in relation to the
repayment and re-advance of the relevant Trance B Advance. Neither the
Facility Agent nor any Bank shall incur any liability to any Borrower
as a result of, nor shall the obligations of any Borrower under this
Agreement be prejudiced by, the inability of the Facility Agent for any
reason whatsoever to effect any such purchase.
(f) The relevant Borrower agrees to indemnify the Facility Agent against
any loss, expense or other liability incurred in connection with any
exchange contract entered into by the Facility Agent for any such
purchase (the certificate of the Facility Agent as to the amount
thereof to be conclusive in the absence of manifest error).
(g) All amounts received by the Facility Agent from the Banks shall be held
and applied by the Facility Agent on behalf of the Banks and shall not
be advanced or be deemed to be advanced to the relevant Borrower until
receipt by the Facility Agent of all amounts then due by way of
repayment as aforesaid.
6.4 SAME OPTIONAL CURRENCY
(a) If a Tranche B Advance is to be continued during its next Interest
Period in the same Optional Currency as that in which it is denominated
during its current Interest Period, there shall be calculated the
difference between the amount of the Tranche B Advance (in that Optional
Currency) for the current Interest Period and for the next Interest
Period. The amount of the Tranche B Advance for the next Interest Period
will be determined by notionally converting
<PAGE>
28
into that Optional Currency the Original Sterling Amount of the Tranche
B Advance on the basis of the Agent's Spot Rate of Exchange three
Business Days before the commencement of that Interest Period.
(b) At the end of the current Interest Period (but subject always to
paragraph (c) below):
(i) if the amount of the Tranche B Advance for the next Interest
Period is less than for the preceding Interest Period, Getty U.K.
shall repay the difference on the last day of the current
Interest Period; or
(ii) if the amount of the Tranche B Advance for the next Interest
Period is greater, the Banks in the proportion which their
respective Tranche B Commitments bear to the aggregate Tranche B
Commitments shall forthwith make available to Getty U.K. the
difference.
(c) If the Agent's Spot Rate of Exchange for the next Interest Period shows
an appreciation or depreciation of the Optional Currency against
Sterling of less than five per cent. (5%) when compared with the
Original Exchange Rate, no amounts are payable in respect of the
difference. In this Clause 6 "ORIGINAL EXCHANGE RATE" means the Agent's
Spot Rate of Exchange used for determining the amount of the Optional
Currency for the Interest Period which is the later of the following:
(i) the Interest Period during which the Tranche B Advance, as the
case may be, was first denominated in that Optional Currency if
the Tranche B Advance has since then remained denominated in that
Optional Currency; and
(ii) the most recent Interest Period immediately prior to which a
difference was required to be paid under this Clause 6.4.
6.5 PREPAYMENTS AND REPAYMENTS
If a Tranche B Advance is to be repaid or prepaid by reference to an
Original Sterling Amount, the Optional Currency amount to be repaid or
prepaid shall be determined by reference to the Agent's Spot Rate of
Exchange last used for determining the Optional Currency amount of that
Tranche B Advance under Clause 6 or, if applicable, the Original
Exchange Rate.
6.6 NOTIFICATION
The Facility Agent shall notify the Obligors' Agent and the Banks of
Optional Currency amounts (and the applicable Agent's Spot Rate of
Exchange) promptly after they are ascertained.
7. ANCILLARY FACILITIES
7.1 ANCILLARY FACILITY
(a) The Obligors' Agent may, at any time during the Tranche C Availability
Period, by notice in writing to the Facility Agent request the
establishment of an Ancillary Facility by the conversion of a Bank's
Tranche C Commitment (or part thereof) into an Ancillary
<PAGE>
29
Commitment with effect from the date (the "ANCILLARY EFFECTIVE DATE")
specified in such notice. Any such notice shall specify:
(i) the proposed Borrower;
(ii) the proposed start date;
(iii) the proposed Ancillary Bank;
(iv) the proposed Ancillary Commitment; and
(v) such other details as to the proposed Ancillary Facility as the
Facility Agent may reasonably require.
(b) Any Bank so nominated as an Ancillary Bank shall if it agrees to
provide the proposed Ancillary Facility become an Ancillary Bank from
the Ancillary Effective Date.
(c) No Ancillary Bank may demand repayment of or cash cover in respect of
any Ancillary Outstandings (and any other outstandings owing under or
in respect of any other facility provided by it to a member or members
of the Group) or set off (otherwise than for interest netting purposes)
any Ancillary Outstandings or take any action analogous to any of the
foregoing until notice has been served under Clause 23.2(b), (c) or (d)
(if any such notice is required) or the proviso to Clause 23.2 applies
unless Tranche C Commitments are available and are to be drawn as
provided below in this paragraph and in paragraph (d) below. If
Tranche C Commitments are available to be utilised under this Agreement
at the time such notice is served (ignoring for these purposes the
provisions of Clause 4.2) or the proviso to Clause 23.2 applies, as the
case may be, in an amount equal to the amount so demanded under the
relevant Ancillary Facility (provided that for these purposes the
Tranche C Commitment of the relevant Ancillary Bank shall be deemed to
be increased by the amount, not exceeding the amount of its Ancillary
Commitment, so demanded) an amount equal to the amount of the Ancillary
Outstandings so demanded shall be drawn as a Tranche C Advance
hereunder and shall be used to repay or provide cash cover in respect
of the amount so demanded under the relevant Ancillary Facility.
(d) On and subject to the terms of this Agreement (ignoring for these
purposes Clause 4.2), each of the Banks shall participate in any such
Tranche C Advance in such amount as will result, after the making of
such Tranche C Advance, in the proportion which (i) the aggregate
amount of its participation in the Tranche C Advances then outstanding
bears to (ii) the aggregate amount of the Tranche C Utilisations then
outstanding, being equal to the proportion which (iii) its Tranche C
Commitment bears to (iv) the aggregate of the Tranche C Commitments.
(e) The Ancillary Outstandings in respect of any Ancillary Facility shall
not at any time exceed the Ancillary Commitment relative to such
Ancillary Facility. All Ancillary Outstandings shall be repaid in full
(together with all accrued interest and any other costs and expenses
due under the terms of such Ancillary Facility) on the last day of the
Tranche C Availability Period (and on such date the Ancillary
Commitments shall be cancelled). An Ancillary Bank may, without
liability, return cheques and other payment instruments unpaid if the
payment of such cheques would result in a breach of this Clause 7.1(e).
<PAGE>
30
7.2 OPERATION OF ANCILLARY FACILITIES
(a) The rate of interest, fees, charges and other remuneration in respect
of each Ancillary Facility shall be determined by agreement between the
relevant Ancillary Bank and the Borrower concerned and in default of
agreement shall be based upon the normal market rates and terms from
time to time of the relevant Ancillary Bank.
(b) In the case of inconsistency between the terms of an Ancillary Facility
and of this Agreement, the terms of this Agreement shall prevail.
(c) A copy of any terms governing the operation of any Ancillary Facility
and any other information relating to the operation of any Ancillary
Facility (including the level of Ancillary Outstandings) shall on
request by the Facility Agent be provided by the Ancillary Bank and/or
the Obligors' Agent to the Facility Agent.
8. REPAYMENT
8.1 TRANCHE A FACILITY
The Parent shall repay the Tranche A Advance (subject to the
application of Clause 9) in full in instalments on the Repayment Dates
specified below and on the Final Repayment Date. The amount (a
"TRANCHE A REPAYMENT INSTALMENT") of the Tranche A Advance to be repaid
by the Parent on each Repayment Date shall be the amount representing
the percentage of the amount of the Tranche A Advance made at Closing
set out below opposite that Repayment Date.
<TABLE>
<CAPTION>
REPAYMENT DATES REPAYMENT INSTALMENTS
(% of the Tranche A Advance made at Closing)
<S> <C>
30th September, 1999 15
31st March, 2000 20
30th September, 2000 25
Final Repayment Date 40
</TABLE>
Any amount of the Tranche A Advance outstanding on the Final Repayment
Date shall be repaid in full on the Final Repayment Date.
8.2 TRANCHE B FACILITY
(a) Getty U.K. shall repay the Tranche B Advances (subject to the
application of Clause 9) in full in instalments on the Repayment Dates
specified below and on the Final Repayment Date. The Original Sterling
Amount of the Tranche B Advance to be repaid by Getty U.K. on each
Repayment Date (a "TRANCHE B REPAYMENT INSTALMENT") shall be a Sterling
amount equal as nearly as possible to the percentage of the amount of
the Original Sterling Amount of the Tranche B Advance made at Closing
set out below opposite that Repayment Date.
<TABLE>
<CAPTION>
REPAYMENT DATE REPAYMENT INSTALMENTS
(% of the Tranche B Advance made at Closing)
<S> <C>
30th September, 1999 15
31st March, 2000 20
</TABLE>
<PAGE>
31
<TABLE>
<CAPTION>
REPAYMENT DATE REPAYMENT INSTALMENTS
(% of the Tranche B Advance made at Closing)
<S> <C>
30th September, 2000 25
Final Repayment Date 40
</TABLE>
Any amount of the Tranche B Advance outstanding on the Final Repayment
Date shall be repaid in full on the Final Repayment Date.
(b) Each repayment of any principal of any Tranche B Advance pursuant to
this Clause 8.2 shall be made in the currency in which such Tranche B
Advance has been denominated during the Interest Period ending on the
relevant Repayment Date and the amount to be repaid (if denominated in
any Optional Currency) shall be calculated on the basis of the Agent's
Spot Rate of Exchange relative to the Interest Period (or, where Clause
6.4(c) is in operation, relative to the first Interest Period in the
series of consecutive Interest Periods during which the Advance has
remained denominated, by reason of that Clause at the same amount,
ignoring repayments and prepayments, in the Optional Currency in
question).
8.3 TRANCHE C ADVANCES
(a) Each Borrower shall repay the full amount of each Tranche C Advance
made to it on the Interest Date relating to that Advance. Any Tranche
C Utilisation then outstanding shall be repaid in full on the last day
of the Tranche C Availability Period.
(b) Without prejudice to each Borrower's obligations to repay the full
amount of each Tranche C Advance made to it on the due date, on the
date of any Rollover Utilisation made by any Borrower 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 such 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.
9. PREPAYMENT AND CANCELLATION
9.1 AUTOMATIC CANCELLATION OF THE TOTAL COMMITMENTS
(a) Any part of the Tranche A Commitments not borrowed hereunder before the
earlier of the expiry of the Tranche A Availability Period and the
Closing Date shall be automatically cancelled at close of business on
such earlier date.
(b) Any part of the Tranche B Commitments not borrowed hereunder before the
earlier of the expiry of the Tranche B Availability Period and the
Closing Date shall be automatically cancelled at close of business on
such earlier date.
(c) The Tranche C Commitments shall be automatically cancelled at close of
business on the last day of the Tranche C Availability Period as from
time to time in force.
9.2 VOLUNTARY CANCELLATION
Getty U.K. may, by giving not less than 10 Business Days' prior notice
to the Facility Agent, cancel the unutilised portion of the Tranche C
Commitments in whole or in part (but, if in part, in an integral
multiple of L500,000) without incurring any penalty or other cost, but
<PAGE>
32
subject to providing to the Facility Agent evidence satisfactory to the
Majority Banks that notwithstanding such cancellation the U.K. Group
will have sufficient working capital facilities available to it to
enable the businesses of the U.K. Group members to be operated in such
a way as to enable those Obligors who are members of the U.K. Group to
repay all their outstandings under the Finance Documents on or before
the due date. Any cancellation in part shall be applied against the
Tranche C Commitment of each Bank pro rata.
9.3 VOLUNTARY PREPAYMENT
Subject to this Clause 9.3, on giving at least 10 Business Days' prior
written notice to the Facility Agent, specifying the Utilisation and
amount to be prepaid, any Borrower may prepay any Utilisation made by
it in whole or in part on the date and in the amount so specified.
Such prepayment of a Utilisation (if in part) shall be of an amount
which is (a) in the case of Tranche A Advances not less than U.S.
$1,000,000 and an integral multiple of U.S. $500,000 if more or (b) (in
the case of Tranche B and Tranche C Utilisations, an amount whose
Original Sterling Amount is not less than L750,000 and an integral
multiple of L250,000 if more.
9.4 RIGHT OF PREPAYMENT AND CANCELLATION
If any Borrower is required to pay any amount to a Bank or to the
Facility Agent for the account of such Bank under Clauses 13, 14 or 15
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. On the date falling 10 Business
Days after the date of service of the notice:
(a) each Borrower shall prepay that Bank's participation in any
Utilisation made to it together with all other amounts payable by
it to that Bank under this Agreement; and
(b) such Bank's Tranche A Commitment, Tranche B Commitment and Tranche
C Commitment shall be cancelled.
9.5 ADJUSTMENT OF REPAYMENT INSTALMENTS
Each prepayment of the Tranche A Advance and the Tranche B Advance made
pursuant to Clause 9.3 shall be applied against future Repayment
Instalments relative thereto determined pursuant to Clauses 8.1 and 8.2
pro rata.
9.6 PREPAYMENT FEE
(a) If any Utilisation is prepaid pursuant to Clause 9.3 from the proceeds
of monies borrowed or raised from a bank, trust, fund or other
financial institution (not being money raised by a public debt issue or
the proceeds of an equity issue not prohibited by the terms hereof)
otherwise than under the Finance Documents then such prepayment may
only be made if, in addition to all other sums required to be paid
under this Agreement with such prepayment, there is paid by the Parent
to the Facility Agent (for the account of the Banks) on or before the
date for such prepayment (and, if not already paid, there shall be due
and payable on such date) a prepayment premium calculated in an amount
of one quarter of one per cent. (0.25%) of the principal amount to be
so prepaid.
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(b) Any such prepayment premium received by the Facility Agent shall be
distributed by the Facility Agent to the Banks pro rata in the proportions
which each Bank's Commitment being the same designation as the Utilisation
prepaid bears to the aggregate of all the Commitments of the Banks so
designated at the date of such prepayment.
9.7 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.
(c) No prepayment of any Utilisation or cancellation of any Commitment is
permitted except in accordance with the express terms of this Agreement.
(d) No amount of the Tranche A Advance or Tranche B Advance repaid or prepaid
under this Agreement may subsequently be re-borrowed. No amount of the
Total Commitments cancelled under this Agreement may subsequently be
reinstated.
10. INTEREST
10.1 INTEREST RATE
The rate of interest on each Advance for each Interest Period relative
thereto is the rate per annum determined by the Facility Agent to be the
aggregate of:
(a) the applicable Margin;
(b) the applicable LIBOR; and
(c) the Additional Cost (if any) relative to such Advance from time to
time during such Interest Period.
10.2 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on
each Advance for each Interest Period relative thereto shall be paid by
the relevant Borrower on the Interest Date relating to such Interest
Period and also, in the case of an Advance with an Interest Period of
longer than 6 months, on the last day of each consecutive period of 6
months from the first day of such Interest Period.
10.3 DEFAULT INTEREST
(a) If an Obligor fails to pay any amount payable by it under this Agreement,
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 rate of interest which would have been payable if the overdue amount
had, during the period of non-payment, constituted a Tranche C Advance for
successive Interest Periods of such duration as the Facility Agent may
determine (each a "DESIGNATED PERIOD").
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34
(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.
(c) If the Facility Agent determines that Clause 14 would apply if the overdue
amount were an Advance during the Designated Period, the rate to be used
pursuant to (a) above will be determined in accordance with Clause 14.
10.4 DETERMINATION CONCLUSIVE; NOTIFICATION
Each determination of a rate of interest by the Facility Agent under this
Agreement shall, in the absence of manifest error, be conclusive and shall
be promptly notified to the Obligors' Agent by the Facility Agent.
10.5 MARGIN ADJUSTMENT
If on 31st December, 1998 or any 30th June or 31st December thereafter the
aggregate of the outstanding Tranche A Utilisations and the equivalent in
Dollars (calculated at a rate of L1:$1.65) of the outstanding Tranche B
Utilisations at such date is less than:
(a) U.S. $40,000,000; or
(b) U.S. $20,000,000
then (subject to as mentioned below and subject to there being no
outstanding Event of Default at such time) the Margin shall be reduced for
that Tranche A Advance or Tranche B Advance, as the case may be, from such
Interest Date and for each other Tranche A Advance and Tranche B
Advance from the first day of each Interest Period for such Advance
commencing after such Interest Date such that if the test in
sub-paragraph (a) above is met the Margin shall be one per cent.
(1.00%) per annum and if the test in sub-paragraph (b) above is met the
Margin shall be zero point seven five per cent. (0.75%) per annum.
11. INTEREST PERIODS
11.1 SELECTION AND AGREEMENT
The Obligors' Agent shall give notice to the Facility Agent not later
than 11.00 a.m. on the third Business Day prior to the commencement of
each Interest Period relative to any Advance (or in the Request
therefor) specifying the duration of such Interest Period, which shall
be of 1 (in the case of a Tranche C Utilisation only), 3 or 6 months or
such other duration as may be agreed by the Facility Agent or as may be
required in order to comply with Clause 11.3 (provided that if such
duration is over six months the Facility Agent may only agree with the
unanimous consent of the Banks participating in such Advance). If the
Obligors' Agent fails to specify the duration of an Interest Period for
any Advance the duration of that Interest Period shall be three months.
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35
11.2 SPLITTING
The Obligors' Agent may, in any notice given pursuant to Clause 11.1,
split a Tranche A Advance and/or a Tranche B Advance into up to 2
Tranche A Advances or Tranche B Advances, provided that one of such
Tranche A Advances or Tranche B Advances (as the case may be) shall be in
an amount at least equal to the Repayment Instalment due to be repaid with
respect to the relevant Advances on the next Repayment Date (and its
specified Interest Period shall end on such next Repayment Date). No
more than 2 Tranche A Advances and 2 Tranche B Advances may be outstanding
at any time.
11.3 RESTRICTIONS ON SELECTION
(a) The Obligors' Agent (on behalf of the relevant Borrower) shall select the
duration of Interest Periods pursuant to Clause 11.1 so as to ensure that
(i) each Repayment Date will also be an Interest Date in relation to an
amount of the Tranche A Advances and the Tranche B Advances at least equal
to the Repayment Instalment (or part of the Repayment Instalment) relative
to the Tranche A Advances or Tranche B Advances (respectively) due to be
paid on such Repayment Date, (ii) no Tranche A Advance or Tranche B
Advance shall have an Interest Period expiring after the Final Repayment
Date and (iii) no Tranche C Utilisation shall have an Interest Period
expiring after the end of the Tranche C Availability Period.
(b) If it appears to the Facility Agent in good faith that the requirements of
paragraph (a) above, or the requirements of the Arranger for an orderly
primary syndication of the Facilities, will not be met by the Obligors'
Agent's selection of any Interest Period, the Facility Agent, on behalf of
and after consultation to the extent practicable with the Obligors' Agent,
shall select a different duration for such Interest Period.
11.4 DURATION
The (or the first) Interest Period relative to each Advance shall commence
on its Utilisation Date and end on the last day of the period selected
therefor and any subsequent Interest Period relative to a Tranche A
Advance or Tranche B Advance shall commence on the expiry of the
immediately preceding Interest Period relating thereto and end on the last
day of the period so selected therefor, provided that if any Interest
Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end instead on the next Business Day in the same
calendar month (if there is one) or on the preceding Business Day (if
there is not).
11.5 NOTIFICATION
The Facility Agent will notify the relevant Banks and the Obligors'
Agent of the duration of each Interest Period relating to an Advance and
of the rate of interest applicable thereto promptly after ascertaining
the same (and such duration and rate shall, in the absence of manifest
error, be conclusive).
12. PAYMENTS
12.1 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 this Agreement to the
Facility Agent shall be made in freely transferable
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36
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.
12.2 DISTRIBUTION
(a) Each payment received by the Facility Agent under this Agreement 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
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 apply any amount received by it for an Obligor in
or towards payment of any amount due from an Obligor under this Agreement.
(c) Where a sum is to be paid under this Agreement 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
this Agreement 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.
12.3 CURRENCY
(a) Interest accrued under this Agreement 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.
(e) Any other amount payable under this Agreement is, except as otherwise
provided in this Agreement, payable in Dollars (if payable by a member of
the Group other than a member of the U.K. Group) or Sterling (if payable
by a member of the U.K. Group).
12.4 SET-OFF AND COUNTERCLAIM
All payments to be made by an Obligor under any Finance Document shall be
made without set-off or counterclaim.
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37
12.5 NON-BUSINESS DAYS
(a) If a payment under this Agreement is due on a day which is not a Business
Day, the due date for that payment shall instead be the next Business Day.
(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.
12.6 PARTIAL PAYMENTS
(a) If the Facility Agent receives a payment insufficient to discharge all
the amounts then due and payable by the Obligors under this Agreement,
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 25.1;
(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 this Agreement.
(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.
12.7 SECURITY AGENT AS JOINT CREDITOR
(a) Each of the Obligors and each of the Finance Parties agree that the
Security Agent shall be the joint creditor (together with the relevant
Finance Party) of each and every obligation of any Obligor towards each
of the Finance Parties under this Agreement, and that accordingly the
Security Agent will have its own independent right to demand
performance by the relevant Obligor of those obligations. However, any
discharge of any such obligation to one of the Security Agent or a
Finance Party shall, to the same extent, discharge the corresponding
obligation owing to the other.
(b) Without limiting or affecting the Security Agent's rights against any
Obligor (whether under this paragraph or under any other provision of
the Finance Documents), the Security Agent agrees with each other
Finance Party (on a several and divided basis) that, subject as set out
in the next sentence, it will not exercise its rights as a joint
creditor with a Finance Party except with the consent of the relevant
Finance Party. However, for the avoidance of doubt, nothing in the
previous sentence shall in any way limit the Security Agent's right to
act in the protection or preservation of rights under or to enforce any
Security Document as
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contemplated by this Agreement and/or the relevant Security Document
(or to do any act reasonably incidental to any of the foregoing).
13. TAXES
13.1 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 13.3, 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.
13.2 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 Bank evidence satisfactory to that Bank (including all
relevant tax receipts) that the payment has been duly remitted to the
appropriate authority.
13.3 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
13.1 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 13.1 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.
13.4 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
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39
consequence of which such Obligor pays an additional amount under
Clause 13.1, 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.
13.5 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) shall, file all such forms, make all such
applications and take all such other action, in each case 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 hereunder 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.
13.6 U.S. TAXATION - DELIVERY OF FORMS AND STATEMENTS
(a) Each Finance Party which is not a U.S. Person and which is lending to a
U.S. Obligor which is a Borrower shall deliver (through the Facility
Agent) to each U.S. Obligor which is a Borrower on or before the first
Interest Date with respect to the first Advance to such Borrower (or in
the case of a Finance Party which became a party to this Agreement
after the date hereof, the first Interest Date with respect to an
Advance to any such Borrower after such Finance Party became a party
hereto), duly completed, two copies of such 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. Obligor of any United States federal Taxes, including,
without limitation, either:
(i) two copies of Form 1001 of the Internal Revenue Service of the
United States of America (relating to an applicable double
revenue tax treaty concluded by the United States of America); or
(ii) two copies of Form 4224 of the Internal Revenue Service of the
United States of America (relating to income effectively
connected with the conduct of a trade or business in the United
States of America).
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40
Each such Finance Party, subject as otherwise provided in Clause
13.6(d), shall deliver (through the Facility Agent) to each U.S.
Obligor additional duly completed copies of any of the above forms
and/or such additional or successor forms 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. Obligor or the Internal Revenue Service of the U.S.A. that
any previous such form delivered by it pursuant to this Clause 13.5 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) 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 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 Clause 13.6(a) or
(b) respectively.
(d) If any Finance Party determines, as a result of any 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 13.6(a) or 13.6(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. Obligor of
that fact.
14. MARKET DISRUPTION
(a) If, in relation to any Advance:
(i) no, or (where there is more than one Reference Bank) only one,
Reference Bank supplies a rate for the purposes of determining
the applicable LIBOR or the Facility Agent otherwise determines
that adequate and fair means do not exist for ascertaining the
applicable LIBOR; or
(ii) the Facility Agent receives notification from Banks whose
participations in an Advance exceed fifty 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 Interest Period; or
(B) the cost to them of such matching deposits in the London
Interbank Eurocurrency Market for that Interest Period
would be in excess of the applicable LIBOR,
the Facility Agent shall promptly notify the Obligors' Agent and the
Banks of that fact and that this Clause 14 is in operation.
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(b) After any notification under paragraph (a) above:
(i) if Clause 14(a)(ii)(A) applies, 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 and to maintaining any existing
Advances to which such notification relates;
(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
Interest Period 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 Interest Period in relation to such
Advance, plus the applicable Margin.
(c) The Facility Agent, in consultation with the Obligors' Agent shall, not
less often than monthly, review whether or not the circumstances
referred to in Clause 14(a) still prevail with a view to returning to
the normal interest provisions of this Agreement.
15. INCREASED COSTS
15.1 INCREASED COSTS
(a) Subject to Clause 15.2 (Exceptions), the Parent shall forthwith on
demand by a Finance Party pay or procure that Getty U.K. shall pay 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:
(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
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(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, letters of credit or guarantees comprised in a
class of advances, letters of credit or guarantees 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 15.1, 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.
15.2 EXCEPTIONS
Clause 15.1 does not apply to any increased cost:
(a) compensated for by the operation of Clause 13 (or which would
have been so compensated for but for the operation of Clause
13.3(a)), Clause 10.1(c) or Clause 15.3; 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; or
(c) attributable to such Finance Party after the date of this Agreement
entering into a commitment to lend to a third party which is, at
the time that commitment is entered into, in breach of any law,
regulation, treaty, directive or request.
15.3 REGULATION D COMPENSATION
Unless such additional interest is paid in accordance with Clause
10.1(c), 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 Interest Period 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
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43
that Interest Period divided by (ii) one MINUS the Euro-Dollar Reserve
Percentage MINUS (B) LIBOR applicable to such Advance for that Interest
Period. 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
Interest Period for each relevant Advance of the amount due to be paid
to it with respect to such Advance pursuant to this Clause 15.3
(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.
16. 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 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 Utilisation 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 Utilisations made
to it together with all other amounts payable by it to that
Finance Party under this Agreement; and
(ii) such Finance Party's Commitments shall be cancelled and the
obligations of the Finance Party to the Borrowers hereunder
shall cease.
17. MITIGATION
17.1 MITIGATION
If Clauses 13, 14, 15 or 16 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 will
enter into discussions with the Obligors' Agent with a view to
determining what mitigating action might be taken by the Facility
Agent with respect to the administration of this Agreement by the
Facility Agent;
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.
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44
17.2 REPLACEMENT OF BANK
If such circumstances as are referred to in Clause 17.1 shall arise, the
Facility Agent, at the request of the Obligors' Agent, will consult
with the Obligors' Agent with a view to identifying and approaching
bank(s), trust(s), fund(s) and financial institution(s) acceptable to
the Obligors' Agent who may be willing to become party to this
Agreement as Bank(s) in replacement for the relevant Bank(s).
17.3 COSTS AND EXPENSES
Any costs and expenses reasonably incurred by any Finance Party pursuant
to this Clause 17 shall be paid by the Obligors' Agent within five
Business Days after receipt of a demand specifying the same in
reasonable detail.
18. GUARANTEE
18.1 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.
18.2 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.
18.3 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 18 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.
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45
18.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 18 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 18 or prejudice or diminish those
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 18 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 18, remain in full force and be construed
as if there were no such act, circumstance, variation, omission, matter
or thing.
18.5 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 18.
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46
18.6 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 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 18.
18.7 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 18:
(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 18 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 18.7.
18.8 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.
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47
18.9 LIMITATIONS
Notwithstanding any other provision of this Clause 18:
(a) the obligations of each U.S. Obligor in its capacity as a Guarantor
under this Clause 18 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, 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;
(b) No Guarantor which is not incorporated in the United States of
America shall guarantee the liabilities of the Parent in respect
of the Tranche A Advance made to the Parent or the liabilities of
any other Guarantor in respect of such liabilities of the Parent
and no claim shall be made against any such Guarantor in respect
thereof.
19. ADDITIONAL BORROWERS, GUARANTORS AND SECURITY
19.1 ADDITIONAL BORROWERS
(a) If any wholly-owned Subsidiary 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 execute and deliver to the Facility
Agent a duly completed Borrower Accession Agreement.
(b) 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 in the case of an Obligor), the Facility Agent
shall execute such Borrower Accession Agreement for itself and on
behalf of the other Finance Parties.
(c) Subject to Clause 19.1(d), upon execution of such Borrower Accession
Agreement by the relevant Subsidiary as Additional Borrower, the
Obligors' Agent and the Facility Agent as aforesaid, such Subsidiary
shall become an Additional Borrower in accordance with the terms hereof
and thereof. If included in the Borrower Accession Agreement, the
Additional Borrower's right to make Utilisations hereunder may be
limited in accordance with the terms so included.
(d) The obligations of the Finance Parties to such Additional Borrower with
respect to the making of the first Utilisation to it under this Agreement
are subject to the condition precedent that the Facility Agent shall have
received in form and substance satisfactory to it each of the documents
listed in Schedule 3 Part II and such other reports, opinions and other
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48
documents relating to such Additional Borrower as the Facility Agent may
reasonably require.
19.2 ADDITIONAL GUARANTORS
(a) The Obligors shall procure that:
(i) Each of PhotoDisc Europe Limited and ArtCast Corporation shall
become n Additional Guarantor on the Closing Date;
(ii) each of Allsport Photographic plc, All-sport (UK) Limited and
Allsport Photography (U.S.) Inc. shall become within 45 days of
the acquisition of Allsport Photographic plc by Getty U.K. or any
other member of the Group, an Additional Guarantor; and
(iii) subject to any provision of law prohibiting the relevant person
from becoming an Additional Guarantor, (A) each company becoming
a Borrower, (B) on incorporating any company pursuant to Clause
21.16 such company (provided that it is also a Material
Subsidiary) and (C) if there has, in the opinion of the Majority
Banks, been a material and adverse change in the business, assets
or financial condition of an Obligor any member of the Group,
shall become, as soon as reasonably practicable after being
required by the Facility Agent on the instructions of the
Majority Banks to become, an Additional Guarantor,
in each case by (I) executing and delivering to the Facility Agent a
Guarantor Accession Agreement (duly executed by the Obligors' Agent for
itself and on behalf of the existing Borrowers and Guarantors) and (II)
delivering to the Facility Agent each of the documents listed in
Schedule 3 Part II and such other reports, opinions and documents (if
any) as the Facility Agent may reasonably require in respect of the
Additional Guarantor, each in form and substance satisfactory to the
Facility Agent.
(b) Where any such prohibition as is referred to in Clause 19.2(a)(ii) above
exists, each Obligor shall use its reasonable endeavours lawfully to
overcome the prohibition. For the avoidance of doubt the provisions of
Clause 18.9 shall apply with respect to the obligations of an Additional
Guarantor as they apply generally to Guarantors.
19.3 ADDITIONAL SECURITY
(a) Subject always to the limitations set out in Clause 19.3(e), the Obligors
shall procure that:
(i) the Security Documents specified in Schedule 6 are executed and
delivered to the Security Agent at Closing;
(ii) Each of ArtCast Corporation and PhotoDisc Europe Limited shall
execute and deliver to the Security Agent at Closing such further
or additional Security Documents as the Facility Agent may
require;
(iii) Tony Stone Images/America Inc. shall execute and deliver to the
Security Agent before 31st May, 1998 a stock pledge agreement
over all the issued shares in Tony Stone Images/Seattle Inc.;
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49
(iv) each of Allsport Photographic plc, All-sport (UK) Limited and
Allsport Photography (U.S.) Inc. shall, at the same time or
before such companies become Additional Guarantors pursuant to
Clause 19.2(a)(i), execute and deliver to the Security Agent such
further or additional Security Documents as the Facility Agent
may require in substantially the same terms as the Security
Documents charging similar assets entered into at Closing;
(v) on acquiring any asset deemed by the Majority Banks to be of
material value or material to the operation of the business of
any member of the Group, 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)
execute and deliver to the Security Agent 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 at
Closing; and
(vi) if there has, in the reasonable opinion of the Majority Banks,
been a material and adverse change in the business, assets or
financial condition of any Obligor, such Obligor shall execute
and deliver to the Security Agent such further or additional
Security Documents in such form and in relation to such of its
assets as the Majority Banks shall require in substantially the
same terms as the Security Documents (if any) charging similar
assets in the same jurisdiction at Closing, subject in each case
to any provisions of law prohibiting such person from entering
into such Security Documents.
(b) Subject always to the limitations set out in Clause 19.3(e), the Obligors
shall procure that any entity which becomes a member of the Group after
Closing shall, if required by the Security Agent, promptly execute and
deliver to the Security Agent such Security Documents in substantially
the same terms as the Security Documents entered into at Closing
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) Subject always to the limitations set out in Clause 19.3(e), 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 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.
(e) Notwithstanding the other paragraphs of this Clause 19.3, no Obligor
which is not incorporated in the United States of America shall charge
any of its assets in favour of the Security Agent to secure the
obligations of the Parent (or of any Obligor in respect of the
obligations of the Parent) with respect to Advances made to the Parent
under this Agreement. Notwithstanding the other paragraphs of this
Clause 19.3, no U.S. Obligor shall pledge more than sixty-five per
cent. (65%) of the shares of any of its Subsidiaries which is not
incorporated in the United States of America to secure the obligations
of the Parent (or of any
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50
Obligor in respect of the obligations of the Parent) with respect to
the Advances made to the Parent under this Agreement.
19.4 RELEASE OF GUARANTORS AND SECURITY
(a) Subject to Clause 19.4(c), 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 Majority Banks 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 Clause 19.4(c), 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 Clause 19.4(a)
and (b) shall only occur (save to the extent otherwise agreed by 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 Majority Banks) security over such assets
shall have been granted to the Security Agent 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 all the
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 disposal of the shares therein or in
any Holding Parent 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
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51
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.
20. REPRESENTATIONS AND WARRANTIES
20.1 REPRESENTATIONS AND WARRANTIES
Each Obligor makes the representations and warranties set out in this
Clause 20 to each Finance Party. The representations and warranties in
Clauses 20.1 shall be subject to any matter fairly and adequately
disclosed to the Finance Parties in the Disclosure Letter.
(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
Material Subsidiary of it 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 Transaction Documents to
which it is or will be a party and the transactions contemplated
by those Transaction Documents.
(c) LEGAL VALIDITY: Subject to the Reservations, each Transaction
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 Transaction Documents to
which it is a party.
(d) NON-CONFLICT: The entry into and performance by it of, and the
transactions contemplated by, the Transaction 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, any Material Subsidiary
or any asset of the Parent or any Material Subsidiary; or
(iv) entitle any third party to terminate any material contract
with the Parent or any Material Subsidiary.
(e) NO DEFAULT:
(i) No Default is outstanding or is reasonably likely to result
from the making of any Utilisation; and
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52
(ii) No other event is outstanding which constitutes (or, with the
giving of notice, lapse of time or the fulfilment of any
other applicable condition (other than a condition as to
materiality which is not satisfied), will 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 Transaction 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 normal year end
adjustments.
(ii) All forecasts and projections delivered to the Facility Agent
pursuant to Clause 21.3 were arrived at after careful
consideration, were fair and were based on reasonable
grounds and as at the date of such delivery were not
misleading in any material respect.
(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.
(j) PROSPECTUS AND REPORTS:
(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.
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53
(ii) 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.
(iii) 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) 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
relevant Target Group or the U.K. Group, as the case may
be, 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.
(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.
(l) DOCUMENTS:
(i) The documents delivered to the Facility Agent by or on
behalf of any Obligor pursuant to Clause 4.1 and any other
provision of the Finance Documents were genuine and in the
case of copy documents, were true, complete and accurate
copies in all material respects, of originals which have
not been amended, varied, supplemented or superseded in any
way which would be likely materially and adversely to
affect the interests of the Banks under the Finance
Documents.
(ii) The Acquisition Agreements, as furnished to the Facility
Agent pursuant to Clause 4.1, contain all the material
terms of the Acquisitions.
(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
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54
material respects as it is being conducted and as
contemplated in the Financial Forecasts and 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) Save as disclosed in the Disclosure Letter, 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.
(o) REPRESENTATIONS TO THE PARENT OR GETTY U.K. (AS APPROPRIATE): So
far as it is aware after due and careful enquiry none of the
representations and warranties (as qualified by any related
disclosure letter) by any of the Vendors or PhotoDisc in any of
the Acquisition Agreements are untrue or inaccurate in any
material respect.
(p) PARENT: Save as arises under the Transaction Documents and save
also for Acquisition Costs, before Closing the Parent has not
traded and has no material liabilities or commitments (actual or
contingent, present or future).
(q) STRUCTURE MEMORANDUM:
(i) The Structure Memorandum contains descriptions which in all
material respects are true, complete and correct of the
corporate ownership structure
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55
of the Group (including details of any minority
shareholdings held by any person who is not a member of the
Group, details of all partnerships, 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 Closing.
(ii) There are no re-organisational steps contemplated at the date
hereof (including, without limitation, significant
transfers of business or assets from one member of the
Group to another) which are not described in the Structure
Memorandum.
(r) ACQUIRED ASSETS: The Parent will, immediately upon Closing,
beneficially own all the stock in Print Merger, Inc. (into which
PhotoDisc upon Closing will be merged) and all the issued share
capital of Getty U.K. and Getty U.K. will, immediately upon
Closing beneficially own all the issued share capital in Allsport
Photographic plc and each of the Parent and Getty U.K. will
either be or will be entitled forthwith to become the legal
registered owner of such stock and shares free from all
Encumbrances, claims and competing interests whatsoever save as
expressly permitted under the Finance Documents.
(s) OWNERSHIP OF ASSETS: Save to the extent disposed of without
breaching the terms of any of the Finance Documents, with effect
from and after Closing, 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
Closing or reflected in the latest of the Base Financial
Statements referred to in the definition of that term in Clause
1.1.
(t) SECURITY DOCUMENTS: It is the beneficial owner of the property
which it purports to charge with full title guarantee 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.
(u) ERISA:
(i) No act, omission or transaction has occurred which will
result in the imposition on any U.S. Obligor of:
(1) either a civil penalty assessed pursuant to section
502(i)of 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.
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56
(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 that is or was
subject to Title IV of ERISA or to the minimum funding
requirements of Section 302 of ERISA or Section 412 of the
IRC.
(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, its terms, and all other
applicable laws, rules and regulations with respect to each
Plan.
(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
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 have 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.
(v) 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.
(w) 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 Transaction 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
<PAGE>
57
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.
20.2 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in Clause 20.1:
(a) (i) in the case of an Obligor which is a Party on the date of
this Agreement, are made by that Obligor on that date and
on the first Utilisation Date; and
(ii) in the case of an Obligor which becomes a Party after the
date of this Agreement, will be deemed to be made by that
Obligor on the date it executes a Borrower Accession
Agreement or Guarantor Accession Agreement; and
(b) (with the exception of Clause 20.1(e)(i), (j), (k), (l)(ii), (n),
(o), (p), (q), (r), (u)(ii)) are in addition deemed to be
repeated by each Obligor on the date of each Request, each
Utilisation Date and each Interest Date with reference to the
facts and circumstances then existing.
21. UNDERTAKINGS
21.1 DURATION
The undertakings in this Clause 21 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.
21.2 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 for
that three month period in a form and showing the detailed
information provided for in the Proforma Accounts together
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58
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 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)(i)
above, (A) a certificate signed by the Auditors (I) setting
out in reasonable detail computations establishing
compliance or otherwise with Clause 22.2, 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 on the basis of such
Accounts;
(ii) 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 (one of whom shall be the Chief
Financial Officer) setting out in reasonable detail
computations establishing compliance with Clause 22.2 as at
the date to which those Accounts were drawn-up; and
(iii) together with the Accounts specified in paragraph (b) above,
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.
21.3 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
twenty-first 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.
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59
21.4 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) as soon as the same are delivered or received or determined,
reasonable details of all warranty and indemnity claims, and of
any alleged breach involving liability or potential liability, in
each case in excess of U.S.$1,000,000 (or its equivalent in other
currencies) made by or against any member of the Group pursuant
to the Acquisition Agreements;
(f) 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;
(g) 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;
(h) written details of the occurrence of any of the events referred to
in Clause 23.1(k) 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;
(i) 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 PBGC, or the materials that
would have been required to be filed if the 30 day notice
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60
requirement to the PBGC was not waived, (ii) the U.S. Obligor or
any ERISA Affiliate files with participants, beneficiaries or the
PBGC a notice of intent to terminate any such Pension 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 Pension Plan or to appoint a trustee
to administer any such Pension 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 Pension
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 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.
21.5 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 22 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.
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61
21.6 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 the following:
(a) Encumbrances constituted or evidenced by the Security Documents;
(b) Encumbrances expressly permitted in writing by 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 (in the case of an Obligor being with Approved Banks)
created in order to facilitate the operation of such bank
accounts and other bank accounts of such members of the Group
with such banks (or Approved Banks as the case may be) 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
the standard terms and conditions of such bank (or Approved Bank
as the case may be) of general application to its corporate
customers;
(f) Encumbrances over assets acquired after the Closing Date and
existing at the date of acquisition but not created in
contemplation of their acquisition, provided that (A) the
principal amount secured by any such Encumbrance shall not be
increased beyond the amount secured thereby at the date of such
acquisition and (B) such Encumbrances are released and discharged
within three months of the date of such acquisition, unless the
Majority Banks otherwise consent;
(g) Encumbrances securing only the Existing Facilities granted over
shares in Tony Stone GmbH and Tony Stone Images/Canada Inc.,
provided that such Encumbrances shall be fully released within 30
days after the date hereof;
(h) Encumbrances in existence at the Closing Date securing Borrowings
owed to National Westminster Bank plc by Allsport Photographic
plc provided that such Encumbrances shall be fully released
within 45 days of the date hereof;
(i) Encumbrances in existence at the Closing Date over shares in Tony
Stone Images/Seattle, Inc. in favour of Marty Loken and Gloria
Grandow provided that such Encumbrances shall be fully released
before 31st May, 1998;
(j) the Encumbrances in existence at the Closing Date in favour of the
British Broadcasting Corporation created by Hulton Getty Picture
Collection Limited more particularly described in the Disclosure
Letter;
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62
(k) Encumbrances over accounts receivable from Subsidiaries of Tony
Stone Images/America Inc. in existence at the Closing Date in
favour of American National Bank created by Tony Stone
Images/America Inc. in respect of a U.S.$1,000,000 facility with
American National Bank, provided that such Encumbrances are fully
released within 14 days of the date hereof; and
(l) Encumbrances not otherwise permitted pursuant to paragraphs (a)-(k)
(inclusive) above together securing indebtedness in an aggregate
principal amount at any time outstanding not exceeding
U.S.$1,500,000 (or its equivalent in other currencies).
21.7 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 21.10; 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.
21.8 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
21.19 and (ii) the disposal of any shares in a member of the
Group which is not a Material Subsidiary 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) the lending of cash and the repayment of cash lent in
compliance with the terms of the Finance Documents;
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63
(D) disposals of Cash Equivalent Investments on arm's length
terms;
(E) 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; and
(F) disposals of assets on arm's length terms not otherwise
permitted under this Clause 21.8 provided that the aggregate
fair market value of the assets disposed of during any annual
Accounting Period does not exceed U.S.$1,500,000 (or its
equivalent in other currencies).
All such sales, transfers, leases or other disposals (other than
under (C)) shall be made only for a cash consideration payable in
full at the time of disposal. Notwithstanding the foregoing no
member of the Group which is incorporated in the United States of
America shall sell, transfer or otherwise dispose of any shares,
real property, plant and equipment or contractual rights (or any
interest in any thereof) to any member of the Group which is
either not incorporated in the United States of America or is so
incorporated but is a Subsidiary of another member of the Group
which is not incorporated in the United States of America.
21.9 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.
21.10 BORROWING
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
other than:
(a) under the Finance Documents; or
(b) Borrowings in the form of loans permitted pursuant to Clause
21.17(b); or
(c) Borrowings to the extent covered by a documentary credit made
available under an Ancillary Facility; or
(d) Borrowings by any member of the Group (not being a member of the
Group on the Closing Date) outstanding at the time that it first
became a member of the Group and not borrowed in contemplation of
it becoming a member of the Group provided that (i) the principal
amount of such Borrowings shall not be increased after the date
it first becomes a member of the Group and shall be repaid in
full within 45 days after it becomes a member of the Group unless
permitted to exist by any other paragraph of
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this Clause 21.10 and (ii) such Borrowings when aggregated with
all other Borrowings permitted to be outstanding at any time
pursuant to this paragraph (d) do not exceed L2,500,000; or
(e) Borrowings owed to National Westminster Bank plc by Allsport
Photographic plc outstanding at the Closing Date provided that
such Borrowings do not exceed L1,500,000 at such date, are not
increased after the date hereof and are fully repaid within 45
days of the date hereof; or
(f) any other Borrowings not exceeding U.S.$3,000,000 (or the
equivalent in other currencies) in aggregate for the Group as a
whole at any one time outstanding.
21.11 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"):
(i) 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
(ii) 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.$2,000,000
or such other higher amount agreed to by the Majority Banks (or
its equivalent in other currencies).
21.12 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 an Approved Bank to facilitate the operation of
bank accounts of members of the Group maintained with such Approved
Bank on a net balance basis, or (d) in respect of the Borrowings of any
other member of the Group which are permitted under Clause 21.10 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
Facilities granted by Tony Stone Images/Canada, Inc. which will be
discharged in full upon repayment of the Existing Facilities, or (f)
guarantees of Subsidiaries of Tony Stone Images/America Inc. in favour
of American National Bank securing a U.S.$1,000,000 facility to Tony
Stone Images/America Inc. provided that such guarantees shall be
released in full within 14 days of the date hereof.
21.13 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
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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 21.14 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.
21.14 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 (i)
the Hedging Documents, (ii) spot foreign exchange contracts entered
into in the ordinary course of business and (iii) transactions entered
into for the hedging of actual or projected exposures arising in the
ordinary course of 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.
21.15 CAPITAL EXPENDITURE
In respect of each annual Accounting Period the Parent will procure
that the Group taken as a whole will not purchase, lease (by finance
lease) or make Capital Expenditure on assets in an aggregate amount for
such annual Accounting Period exceeding 120% of the amount budgeted for
Capital Expenditure in the Financial Forecasts or in any revision
thereto in this respect.
21.16 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) shares in members of the Target Group or Getty U.K. or Allsport
Photographic plc acquired at Closing; or
(c) members of the Group at the date of this Agreement which are
Obligors; or
(d) 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
(e) the acquisition of all the shares of limited liability companies
(each a "NEW SUBSIDIARY") whose business is similar to that
carried on by another member of the Group, where at least two
weeks advance notice of such acquisition has been given to the
Facility Agent and where the aggregate consideration payable by
members of the Group (including any deferred purchase price and
borrowings or other liabilities of the New Subsidiary discharged
as part of the acquisition and the costs incurred by members of
the Group) in making any such acquisitions does not exceed, when
aggregated with the aggregate consideration for all other New
Subsidiaries,
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U.S.$10,000,000 less the aggregate Joint Venture Investment
(as defined in Clause 21.33 from time to time),
provided that:
(A) (i) unless otherwise permitted by Clauses 21.12 or 21.17, no
member of the Group will, at any time, grant any loan or
other credit facilities to such New Subsidiary or provide
or be liable under any guarantees, indemnities or
assurances against loss in respect of the obligations or
liabilities of such New Subsidiary; and
(ii) no member of the Group will, at any time, enter into any
transaction with such New Subsidiary other than on arm's
length terms or sell, lease or dispose of any asset to such
New Subsidiary otherwise than for cash and on arm's length
terms in the ordinary course of business; and
(iii) save for such initial purchase of the shares of such New
Subsidiary, no member of the Group will purchase, acquire or
subscribe for any shares of such New Subsidiary; and
(iv) no member of the Group will enter into any put or call
arrangements with any such New Subsidiary; and
(B) the acquisition of the shares referred to in (e) above shall only
be permitted to the extent that, if requested by the Security
Agent, security is given over such shares upon or immediately
following their acquisition in favour of (and in form and
substance reasonably satisfactory to) the Security Agent for the
Banks by the relevant member of the Group.
21.17 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 specified in the Structure Memorandum; or
(ii) the loan is made by an Obligor to another Obligor; or
(iii) 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.$2,000,000 (or its
equivalent in other currencies) and the aggregate amount
lent (by all members of the Group) at
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any time outstanding to any particular Non-Obligor does not
exceed U.S.$1,000,000 (or its equivalent in other
currencies); or
(iv) 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 loan 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 21.12; 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).
21.18 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,
except that the Parent may declare, make and pay dividends in respect
of its Shares for any annual Accounting Period commencing after 30th
September, 1999 (I) where no Default has occurred and is continuing at
the date of such declaration or payment and (II) up to an aggregate
amount (net of any applicable Tax payable by the Parent in respect
thereof) equal to Consolidated Cashflow less Consolidated Total Debt
Service for the annual Accounting Period most recently ended from time
to time (determined by reference to the audited consolidated Accounts
of the Parent for that Accounting Period).
21.19 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 Repayment 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
Closing which is subscribed for in full in cash and in respect of which
no dividend or distribution is payable (other than to the extent
permitted pursuant to Clause 21.18) 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
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of a type substantially similar to any class of its stock in issue at
Closing issued to the vendors of any New Subsidiary (as defined in
Clause 21.16(e)) provided that such issue does not cause a breach of
Clause 23.1(m).
21.20 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.
21.21 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;
(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
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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.
21.22 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 21.22 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.
21.23 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.
21.24 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.
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21.25 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 otherwise than on
arm's-length terms in the ordinary course of trade.
21.26 AMENDMENTS TO DOCUMENTS
(a) 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 withheld), other
than for changes reflected in the documents delivered in satisfaction
of the conditions precedent set out in Clause 4.1 or (ii) enter into
any agreements or arrangements with the holders of the Shares, 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).
(b) The Parent will procure that within 30 days of the Closing Date the
shareholders of Getty U.K. amend the memorandum and articles of
association of Getty U.K. to the reasonable satisfaction of the
Facility Agent.
(c) The Parent will procure that within 45 days of the Closing Date the
shareholders of Allsport Photographic plc amend the memorandum and
articles of association of Allsport Photographic plc to the reasonable
satisfaction of the Facility Agent.
21.27 BANK ACCOUNTS
No Obligor incorporated in the United Kingdom or the United States of
America will open or maintain any account with any branch of any bank
or other financial institution providing like services (other than an
account maintained with a Finance Party pursuant to the requirements of
the Finance Documents) unless such branch and bank or financial
institution shall be an Approved Bank, provided that at any time an
aggregate of US$3,000,000 may be held by members of the Group
incorporated in the United States of America with banks or financial
institutions which are not Approved Banks.
21.28 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.
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21.29 AUDITORS
(a) Each Obligor will, and will procure that each of its Subsidiaries will,
instruct its auditors to discuss (at the cost of such Group member) the
Group's and/or such other Group member's financial position with the
Facility Agent on request from the Facility Agent (not more than once
in any annual Accounting Period unless the Facility Agent has
reasonable grounds for believing that there is a breach of Clause 23 or
that any of the calculations delivered pursuant to Clause 21.2(d) are
wrong or that any of the Accounts delivered pursuant to Clause 21.2
have not been prepared in accordance with the Applicable Accounting
Principles) and to disclose to the Facility Agent for itself and the
Banks (and provide them with copies of) such information as the
Facility Agent and the Banks have requested from the Parent pursuant to
this Agreement regarding the financial condition and operations of the
Group and any member of the Group (if, when requested, the Parent has
failed to provide the same to the reasonable satisfaction of the Banks).
(b) The Parent will not appoint any auditors or change its auditors unless
the Majority Banks consent to the identity of such auditors, such
consent not to be unreasonably withheld.
21.30 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.
21.31 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.
21.32 SYNDICATION
The Parent shall ensure that the Executives provide reasonable
assistance to the Arranger in the preparation of an information
memorandum for syndication of the Facilities and shall comply with all
reasonable requests for access (including, without limitation, for
visits to operational sites) and information from potential syndicate
members or the Arranger.
21.33 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
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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. $2,000,000.
21.34 HOLDING COMPANY
After the Closing Date, the Parent shall not carry on any business
(other than administrative services to other members of the Group) or
hold or acquire any assets other than shares in PhotoDisc and Getty
U.K. and other shares pledged to Banks in accordance with the
provisions of this Agreement or any Security Document.
21.35 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 section 502(i) of 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 the failure to make such payment, or the existence of
that deficiency, as the case may be, would have a Material Adverse
Effect.
21.36 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 U.S.A., 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
U.S.A., as in effect from time to time ("REGULATION X");
(b) use the proceeds of any Advance or Utilisation, 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 Facilities or Utilisations 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.
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21.37 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.
21.38 HEDGING
The Parent will, or will procure that the relevant Borrowers will,
enter into hedging arrangements (and the related Hedging Documents)
considered appropriate by its board of directors (after consultation
with the Facility Agent) within three months of the Closing Date.
21.39 YEAR 2000
Each Obligor will take such steps as its board of directors shall
consider to be necessary to ensure that the advent of the Year 2000
will not have a material adverse effect on the Group's financial
reporting or other systems and shall, at the request of the Facility
Agent (but not more than once in any twelve month period), instruct its
Auditors or other appropriate consultants to undertake an audit as to
the appropriateness of the Group's systems.
21.40 REORGANISATION
The Parent shall procure that within 45 days of the Closing Date,
Tri-Energy Productions Inc., Getty Images (US) Inc. and its
Subsidiaries and Liaison Agency Inc. and its Subsidiaries shall cease
to be Subsidiaries of Getty U.K. and shall become direct wholly-owned
Subsidiaries of the Parent or any other Obligor incorporated in the
United States of America, provided that (a) the Parent or such other
Obligor shall give security to the Security Agent over the shares in
such Subsidiary which shall be no less comprehensive than that given by
Getty U.K. over the shares in such Subsidiary at the Closing Date and,
for the avoidance of doubt, the limitation in the first sentence of
Clause 19.3(e) shall no longer apply to such pledge of shares and (b)
the Parent shall be under no obligation to effect any reorganisation
where the Parent reasonably believes that effecting such reorganisation
would adversely affect the tax position of the Group, taken as a whole.
22. FINANCIAL COVENANTS
22.1 DEFINITIONS
(a) In this Agreement:
"ADJUSTED TOTAL ASSETS"
at any time the consolidated total assets of the Group at such time,
less goodwill, capitalised research and development costs, deferred tax
assets and all other assets which fall to be treated as intangible
assets in accordance with the Applicable Accounting Principles, all as
determined from the Balance Sheet.
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"BALANCE SHEET"
means, at any time, the latest published audited or unaudited
consolidated balance sheet of the Group.
"CONSOLIDATED CASH FLOW" for any period means Consolidated EBIT for such
period:
(1) PLUS all depreciation, amortisation and other non-cash charges
deducted in establishing Consolidated EBIT for such period;
(2) PLUS the proceeds of any subscription in cash for shares in the
Parent (which by their terms are not redeemable prior to the
Final Repayment Date) received by the Parent (other than the
proceeds of the share subscription to be made at Closing by Getty
Investments Inc.);
(3) PLUS the amount of any tax rebate or credit in respect of any
advance corporation tax, mainstream corporation tax or
withholding tax or their equivalents in any relevant jurisdiction
actually received in cash by any member of the Group during such
period;
(4) MINUS all Capital Expenditure and all consideration and related
acquisition costs for all businesses, companies or shares
acquired by any member of the Group (other than in relation to
acquisitions permitted by Clause 21.16(e)) in each case actually
paid or contractually required to be paid by members of the Group
during such period, provided that for the period ending 31st
December, 1998 there shall not be deducted the consideration and
related acquisition costs for the Acquisitions actually paid;
(5) MINUS all advance corporation tax, mainstream corporation tax and
withholding tax actually paid and/or falling due for payment
during such period;
(6) MINUS the amount of all dividends, redemptions and other
distributions paid or which have become due and payable by any
member of the Group during such period on, of or in respect of
any of its share capital not held by a member of the Group;
(7) MINUS (to the extent not taken into account in calculating
Consolidated EBIT for such period and not otherwise deducted in
this definition) all amounts paid or contractually required to be
paid by any member of the Group to or for the account of any
joint venture or other person in which the Group has an ownership
interest but which is not a member of the Group during such
period and minus the amount by which profit of any joint ventures
or such other persons included in Consolidated EBIT for such
period exceeds the amount of such profit distributed or otherwise
made available in cash to members of the Group during such period;
(8) MINUS any increase or PLUS any decrease in Consolidated Net Working
Investment between the Accounting Dates at the beginning and end of
such period;
(9) MINUS all non-cash credits and plus all non-cash debits included in
establishing Consolidated EBIT for such period (to the extent not
included in calculating
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Consolidated Net Working Investment as at the Accounting Date on
which such period ends);
(10) MINUS all extraordinary items which are paid by any member of the
Group in cash during such period (net of any cash proceeds of
insurance or warranty claims which relate to such items) provided
that there shall be no such deduction in respect of any
restructuring charges aggregating up to U.S.$10,000,000 added
back in the calculation of Consolidated EBIT for the period
ending 31st December, 1998;
(11) PLUS the proceeds received during such period of any asset
disposal made on arm's length terms for fair market value to the
extent not taken into account when determining Consolidated EBIT
for such period.
"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
(4) AFTER DEDUCTING amortisation of any goodwill arising from the
Acquisition at Closing and the amortisation of any Acquisition
Costs;
(5) 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;
(6) (for the period ended 31st December, 1998) AFTER ADDING BACK any
restructuring charges aggregating up to U.S.$10,000,000 deducted in
determining profit for such period.
"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.
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"CONSOLIDATED NET WORKING INVESTMENT" as at any Accounting Date means
Consolidated Current Commercial Assets as at such Accounting Date MINUS
Consolidated Current Commercial Liabilities as at such Accounting Date.
For this purpose:
(a) "CONSOLIDATED CURRENT COMMERCIAL ASSETS" as at any Accounting
Date means all of the current assets (other than Cash, Cash
Equivalent Investments, credits receivable for advance
corporation tax, mainstream corporation tax or withholding tax
suffered, Interest receivable and repayments of Borrowings within
paragraphs (a), (c) or (i) of the definition of that term in
Clause 1.1 receivable) of the Group as at such Accounting Date;
(b) "CONSOLIDATED CURRENT COMMERCIAL LIABILITIES" as at any
Accounting Date means all of the current liabilities (excluding
Borrowings within paragraph (a), (b), (c), (d), (f), (g), (h) and
(i) (unless consisting of a liability in relation to items
falling within paragraph (e) of the definition of Borrowings in
Clause 1.1) and any accrued or unpaid Interest and any
liabilities in respect of advanced corporation tax, mainstream
corporation tax and their equivalents in any relevant
jurisdiction and dividends, redemptions and other distributions
payable to shareholders of the Parent) of the Group as at such
Accounting Date.
"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, 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)
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.
"CONSOLIDATED TOTAL DEBT SERVICE" for any period means Consolidated Net
Interest Payable for such period:
(1) PLUS the amount of any reduction in any Repayment Instalment
which fell (or would otherwise have fallen) due during such
period caused by a prepayment made pursuant to this Agreement in
any previous period;
(2) PLUS all Borrowings (excluding Borrowings within paragraphs (b)
and/or (d) of the definition of Borrowings in Clause 1.1) of
members of the Group paid or which fell due for repayment during
such period (whether or not paid during or deferred for payment
after such period), including the amount of any prepayments made
during such period but excluding any principal amount paid or
which fell due under any overdraft or revolving credit facility
(including, without limitation, any Ancillary Facility) and which
was available for simultaneous redrawing according to the terms
of such facility or of a similar facility or under the Tranche C
Facility.
"CONSOLIDATED U.S. CASH FLOW" for any period means Consolidated Cash
Flow for such period determined as if references in the definition of
Consolidated Cash Flow in Clause 22.1(a) to (i) "Group" were to the
Group excluding those members of it not incorporated in the United
States of America, and (ii) "Consolidated EBIT" were to Consolidated
EBIT also determined as if references to the "Group" were to the Group
excluding those members of it not incorporated in the United States of
America.
<PAGE>
77
"CONSOLIDATED U.S. TOTAL DEBT SERVICE" means Consolidated Total Debt
Service determined as if (i) references in the definition of
Consolidated Total Debt Service (and in the definition of Consolidated
Net Interest Payable as referred to therein) in Clause 22.1(a) to the
"Group" were to the Group excluding those members of it not
incorporated in the United States of America and (ii) the reference in
paragraph (1) to any Repayment Instalment were to any Tranche A
Repayment Instalment and (iii) the reference in the last line to the
Tranche C Facility were deleted.
"EXCEPTIONAL ITEMS" has the meaning given to it in the Applicable
Accounting Principles.
"EXTRAORDINARY ITEMS" has the meaning given to it in the Applicable
Accounting Principles.
(b) (i) All the terms defined in paragraph (a) above are to be determined
on a consolidated basis and (except as expressly included or
excluded in the relevant definition) in accordance with the
Applicable Accounting Principles and as determined from the
consolidated Accounts of the Group for the relevant periods
delivered pursuant to Clause 21.2.
(ii) For the purposes of this Clause 22 no item shall be deducted or
credited more than once in any calculation.
(iii) Any component of any of the covenants set out in this Clause 22
to be determined for a period ending 31st December, 1998 shall be
determined in accordance with the Applicable Accounting
Principles for the period commencing 1st January, 1998 and ending
31st December, 1998.
22.2 FINANCIAL COVENANTS
The Obligors shall procure that:
(a) CONSOLIDATED EBITDA TO CONSOLIDATED NET INTEREST PAYABLE:
Consolidated EBITDA for any period comprising an annual
Accounting Period of the Group or four consecutive Accounting
Periods of three months duration of the Group (taken together as
one period) ending on any Accounting 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 indicated for such
Accounting Date in such table:
<TABLE>
<CAPTION>
ACCOUNTING DATE (BEFORE ANY ADJUSTMENT) Y
<S> <C>
31st December, 1998 5
30th June, 1999 5
31st December, 1999 5
30th June, 2000 7
31st December, 2000 7
and each 30th June and 31st December thereafter 7
</TABLE>
<PAGE>
78
(b) CONSOLIDATED CASH FLOW TO CONSOLIDATED TOTAL DEBT SERVICE:
(i) Consolidated Cash Flow for the period comprising an annual
Accounting Period of the Group or four consecutive
Accounting Periods of three months duration of the Group
(taken together as one period) ending on 31st December,
1998 or any 30th June or 31st December (before any
adjustment) falling thereafter shall not be less than 1.00
times Consolidated Total Debt Service for such period
provided that for the purpose of testing such covenant for
the period ended 31st December, 1998 only, (A) item (5) in
the definition of Consolidated Cash Flow shall be read as
if the following proviso thereto were included at the end,
"provided that the first U.S. $2,000,000 of such taxes in
the aggregate for such period shall not be so deducted".
(ii) Consolidated U.S. Cash Flow for the period comprising an
annual Accounting Period of the Group (taken together as
one period) ending on 31st December, 1998 or any 30th June
or 31st December (before any adjustment) falling thereafter
shall not be less than 1.00 times Consolidated U.S. Total
Debt Service for such period.
(c) CONSOLIDATED TOTAL BORROWINGS TO CONSOLIDATED EBITDA:
The Consolidated Total Borrowings on any Accounting Date
specified in the table below, shall be less than Y times
Consolidated EBITDA for the annual Accounting Period of the Group
or for the four consecutive Accounting Periods of three months
duration (taken together as one period) ending on such Accounting
Date, where Y has the value indicated opposite such Accounting
Date in such table:
<TABLE>
<CAPTION>
ACCOUNTING DATE (BEFORE ANY ADJUSTMENT) Y
<S> <C>
31st December, 1998 2.75
30th June, 1999 2.75
31st December, 1999 1.50
30th June, 2000 1.50
31st December, 2000 1.50
and each 30th June
and 31st December thereafter 1.50
</TABLE>
(d) ADJUSTED TOTAL ASSETS
At all times during each period set out in column (1) of the
table below (as adjusted so that each such period ends on and,
save in the case of that commencing on the Closing Date,
commences on the day following, an Accounting Date), Adjusted
Total Assets shall not be equal to or less than the amount set
opposite such period in column (2) below:
<PAGE>
79
<TABLE>
<CAPTION>
(1) (2)
PERIOD ADJUSTED TOTAL ASSETS
U.S.$'000,000
<S> <C>
Closing Date - 31st December, 1999 90
1st January, 2000 - Final Repayment Date 120
</TABLE>
22.3 PERIODS
Where any of the periods (a "COVENANT PERIOD") referred to in Clause
22.2 would otherwise commence before the Closing Date, such Covenant
Period shall instead commence on the Closing Date (and the part falling
before the Closing Date shall be ignored).
23. DEFAULT
23.1 EVENTS OF DEFAULT
Each of the events set out in this Clause 23.1 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 21.6, 21.7, 21.8, 21.15, 21.18, 21.19, 21.27 or 22.2;
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 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,
<PAGE>
80
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.$500,000 (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.$500,000 (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.$500,000 (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, valid and
binding obligation of any Obligor party to it or, in the
case of any Security Document, 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
<PAGE>
81
(iii) any Obligor alleges in writing that any Finance Document is
ineffective or invalid; or
(f) INSOLVENCY:
(i) the Parent or any Obligor which is a 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) the Parent or any Obligor which is a 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) the Parent or an Obligor which is a 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
the Parent or any Obligor which is a Material Subsidiary; or
(ii) a meeting of the board of directors or shareholders of the
Parent or any Obligor which is a 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 the Parent or any Obligor which is a
Material Subsidiary (not being a frivolous or vexatious
petition); or
(iv) any order for the winding-up or administration of the Parent
or any Obligor which is a 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 the Parent or any Obligor
which is a Material Subsidiary or any other insolvency
proceedings involving any such person; or
(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 the
Parent or any Obligor which is a Material Subsidiary or any
part of its assets; or
<PAGE>
82
(ii) the directors of the Parent or any Obligor which is a
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 which
is a Material Subsidiary or its assets; or
(iii) any other steps are taken to enforce any Encumbrance over
any part of the assets of the Parent or any Obligor which
is a Material Subsidiary, save where the Parent or that
Obligor is in good faith contesting such enforcement by
appropriate proceedings and the Majority Banks acting
reasonably are satisfied that the ability of the Parent or
any Obligor which is a 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.$500,000 (or its equivalent in other currencies), and is not
discharged within 7 days; or
(j) U.S. BANKRUPTCY: the Parent or any Obligor which is a 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 the Parent
or any Obligor which is a Material Subsidiary; or
(k) ANALOGOUS PROCEEDINGS:
(i) there occurs, in relation to any Non-Obligor (or any of its
assets) or any Obligor which is not a Material Subsidiary
(or any of its assets) any of the events referred to in
Clauses 23.1(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
23.1(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
<PAGE>
83
latest quarterly or audited consolidated Accounts of
the Group delivered pursuant to Clause 21.2; or
(ii) there occurs, in relation to the Parent or any Obligor
which is 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 23.1(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 Transaction Documents and the same has a Material
Adverse Effect; or
(o) RESCISSION: any party to the Merger Agreement or the Scheme of
Arrangement rescinds or seeks to rescind any of those agreements
where to do so would materially and adversely affect the interest
of the Banks under the Finance Documents; or
(p) 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 Banks, is material in the
context of the Finance Documents and the transactions
contemplated thereby; or
(q) 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
(r) MATERIAL ADVERSE CHANGE: any event or series of events occurs which
has, or is reasonably likely to have a Material Adverse Effect; or
<PAGE>
84
(s) 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.
(t) (i) any material factual information contained or referred to
in any Report was not true in all material respects at the
date (if any) ascribed thereto or (if none) on the date of
the relevant Report:
(ii) any of the Reports was misleading in any material respect at
its date;
(iii) any expressions of opinion or intention given by or on behalf
of any member of the Group and any forecasts or projections
furnished by any member of the Group and contained or referred
to in any Report are shown not to have been arrived at after
careful consideration or not to have been based on reasonable
grounds;
(iv) any Report omitted any information which would have made any
material information, forecasts or projections in such Report
misleading in any material respect;
provided that none of the above shall constitute an Event of Default
if not within the knowledge of any of the Executives or, to the
extent that the Reports or the factual information, expressions of
opinion or intention, forecasts or projections concerned do not
relate to an Obligor or to Material Subsidiaries which are its
Subsidiaries).
23.2 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 (I) 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 23.1(f) to (h) (inclusive) and (j) to (k)(ii) (inclusive) in
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
<PAGE>
85
of the obligations and liabilities of the Obligors shall become
automatically and immediately due and payable and, (II) 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.
24. THE AGENTS, THE HEDGING BANK AND THE ARRANGER
24.1 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.
24.2 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.
24.3 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.
24.4 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.
24.5 DELEGATION
Each Agent may act under the Finance Documents through its personnel
and agents.
24.6 RESPONSIBILITY FOR DOCUMENTATION
Neither any Agent nor the Arranger is responsible to any other Party for:
(a) the execution, genuineness, validity, enforceability or sufficiency
of any Finance Document or any other document;
<PAGE>
86
(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 any Report or
information memorandum).
24.7 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 Banks.
(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.
24.8 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.
24.9 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).
24.10 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:
(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
<PAGE>
87
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.
24.11 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) The Facility Agent shall, at the cost of the Parent, promptly supply a
Bank with a copy of each document received by the Facility Agent under
Clauses 4 (with the exception of the Fee Letters), 19.1(d) or 19.2(a)
upon the request of that Bank.
(c) 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.
(d) Except as provided above, neither any Agent nor the Arranger has any duty:
(i) either initially or on a continuing basis to provide any Bank
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.
24.12 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.
24.13 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
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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.
(b) A Bank's proportion of the liability or loss set out in paragraph (a)
above is the proportion which its participation in the Utilisations (if
any) bears to all the Utilisations on the date of the demand. If,
however, there are no Utilisations 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.
24.14 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 24, 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).
24.15 RESIGNATION
(a) Notwithstanding Clause 24.1, 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 24.15(d), 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
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AGENT" in all of the Finance Documents shall include such Replacement
where appropriate. This Clause 24 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.
24.16 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.
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24.17 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.
24.18 UNDERTAKINGS OF THE HEDGING BANK
The Hedging Bank undertakes to each of the Banks that, except as the
Majority Banks have previously consented in writing, it will not:
(a) demand (other than as may be necessary in order to exercise any
right to terminate or close out any hedging transaction as
provided in and permitted under paragraph (b) below) or receive
payment, prepayment or repayment of, or any distribution in
respect of, or on account of, any of the Hedging Liabilities in
cash or in kind, or apply any money or property in or towards the
discharge of any Hedging Liabilities except for scheduled
payments arising under the original terms of the Hedging
Documents (without regard to any amendments made after the date
of those Hedging Documents other than those permitted by the
terms of this Agreement) and except for the proceeds of
enforcement of the Security Documents received and applied in the
order permitted by Clause 12.6;
(b) exercise any right to terminate or close out any hedging
transaction under the Hedging Documents prior to its stated
maturity (whether by reason of the Obligor counterparty becoming
a Defaulting Party thereunder (and as defined therein) or
otherwise) unless either:
(i) such Obligor has defaulted on a payment due under the Hedging
Documents after allowing for any required notice and any
applicable days of grace and such default continues for more
than seven Business Days after notice of such default being
given to the Facility Agent; or
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(ii) the Facility Agent has delivered a notice to the Parent
pursuant to Clause 23.2(b), (c) or (d);
(c) discharge all or any part of the Hedging Liabilities by set-off,
any right of combination of accounts or otherwise except if and
to the extent that those Hedging Liabilities are permitted to be
paid under paragraph (a) above; or
(d) permit to subsist or receive an Encumbrance or any financial
support (including without limitation to the taking of any
participation, the giving of any guarantee, indemnity or other
assurance against loss, or the making of any deposit or payment)
for, or in respect of, any of the Hedging Liabilities other than
under the Security Documents or any other Encumbrance or support
granted for the full benefit (save to the extent otherwise
required so as to comply with applicable law) of the Banks, and
except under the original provisions of the Hedging Documents.
24.19 TWO WAY PAYMENT
Each Obligor and the Hedging Bank agree with each other and with Finance
Parties that:
(a) any Hedging Document to which they are party governing the terms
of a hedging transaction will provide for "two way payments" in
the event of a termination of that hedging transaction entered
into under that Hedging Document whether upon a termination event
or an Event of Default (as defined therein), meaning that the
Defaulting party under (and as defined in) that Hedging Document
will be entitled to receive payment under the relevant
termination provisions if the net replacement value of all
terminated transactions effected under that Hedging Document is
in its favour;
(b) if, on termination of any hedging transaction under the Hedging
Documents, a settlement amount or other amount falls due from the
Hedging Bank to any Obligor then, if the security constituted by
the Security Documents has become enforceable, that amount shall
be paid by such Hedging Bank to the Security Agent and treated as
proceeds of enforcement of the security conferred by the Security
Documents for application in the order prescribed in this
Agreement; and
(c) unless it has already exercised such rights in accordance with
Clause 24.18(b), that Hedging Bank will exercise any rights it
may have to terminate the hedging transactions under the Hedging
Documents after the Facility Agent has delivered a notice to the
Parent pursuant to Clause 23.2(b), (c) or (d) unless the Majority
Banks otherwise agree or require.
24.20 HEDGING DOCUMENTS
The Hedging Bank will provide to the Facility Agent copies of all
documents constituting the Hedging Documents as soon as reasonably
practicable.
24.21 ISDA FORM
The provisions of this Agreement relating to hedging transactions
assume that all Hedging Documents will be based on prevailing standard
ISDA Agreements. If this proves not to be the case, such amendments
shall be made to such provisions as are necessary, in the light of
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the actual provisions of the Hedging Documents, in order that this
Agreement may have the same effect in relation to hedging transactions
as it would have had if such assumption had been correct.
25. FEES
25.1 ARRANGEMENT FEE
The Parent shall pay or procure that Getty U.K. 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.
25.2 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 equal to zero point five zero per cent.
(0.50%) on the daily unutilised balance of the aggregate of that Bank's:
(i) undrawn and available Tranche A Commitment during the Tranche A
Availability Period; and
(ii) undrawn and available Tranche B Commitment during the Tranche B
Availability Period.
(b) Accrued commitment fee is payable to the Facility Agent on the earlier of
the Closing Date and the expiry of the Tranche A/B Availability Period.
25.3 AGENCY FEES
The Parent shall pay to the Facility Agent for its own account the agency
fees on the dates and in the amount agreed in the letter of even date
herewith from the Facility Agent to the Parent and counter-signed by the
Parent.
25.4 VAT
Any fee referred to in this Clause 25 (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.
26. EXPENSES
26.1 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:
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(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, 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.
26.2 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.
26.3 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.
27. INDEMNITIES
27.1 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
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94
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.
27.2 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 2.5, Clause 23.2 or Clause 33;
(c) any payment of principal of or interest on an Advance or of an
overdue amount being received otherwise than on its Interest
Date; or
(d) (other than by reason of default by a Finance Party) a
Utilisation not being made after a Request has been delivered for
that Utilisation,
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).
27.3 INDEMNITY RELATING TO FACILITIES
The Parent agrees to indemnify each Finance Party and each of their
respective directors, officers and employees against any and all
claims, damages, liabilities, reasonable costs and expenses (including
legal fees) which may be incurred by or asserted against such Finance
Party or their respective directors, officers and employees in
connection with or arising out of any such proceedings, actions or
enquiry by any regulatory authority of a type referred to in Clause
23.1(n) (ignoring the provision as to materiality contained therein) or
any litigation or other proceedings connected with the right to
transfer the Acquired Assets (or any part thereof), or the shares of
any member of the Target Group under the Transaction Documents or any
competing rights to the Acquired Assets (or any part thereof) or to any
of the Shares, provided that this indemnity shall not extend to any
claim, damage, liability, cost or expense arising out of such Finance
Parties' negligence or wilful misconduct or that of their respective
directors, officers and employees including any breach of any law,
regulation or official
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directive with which it was, at the time of such breach, the practice
of banks in its jurisdiction to comply.
28. EVIDENCE AND CALCULATIONS
28.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they relate.
28.2 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.
28.3 CALCULATIONS
Interest (including any applicable Additional Cost) and the fees
payable under Clause 25.2 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.
29. AMENDMENTS AND WAIVERS
29.1 PROCEDURE
(a) Subject to Clause 29.2, 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 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.
29.2 EXCEPTIONS
A waiver, amendment or variation which relates to:
(a) the definition of "MAJORITY BANKS" in Clause 1.1;
(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;
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(c) a change in a Bank's Commitment (other than as expressly
contemplated by this Agreement) or an extension of any
Availability Period;
(d) the incorporation of Additional Borrowers and/or drawers or a
change in the Guarantors otherwise than in accordance with
Clauses 19.1 or 19.2;
(e) a term of a Finance Document which expressly requires the consent
of each Bank;
(f) Clauses 8, 9, 12.6, 13, 33, 38 or this Clause 29; or
(g) any material provision of any Security Document or any release
(not otherwise provided for in Clause 19 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.
29.3 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.
30. CHANGES TO THE PARTIES
30.1 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.
30.2 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) 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.
(b) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with Clause 30.3
(Procedure for substitution); 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
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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) Save where the Existing Bank is an Original Bank, 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 L1,000.
(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 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; and
(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
30.2 or Clause 30.3; 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.
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(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.
(i) If any Bank assigns its rights under this Agreement a written
instrument by which such rights are assigned must be notified to
Fotogram-Stone Sarl by an HUISSIER (bailiff) in accordance with the
provisions of Article 1690 of the French Civil Code.
30.3 PROCEDURE FOR SUBSTITUTION
(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 "SUBSTITUTION 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 Substitution
Certificate on its behalf.
(c) To the extent that they are expressed to be the subject of the novation
in the Substitution 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;
(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 Substitution Certificate by the
Facility Agent or, if later, the date specified in the Substitution
Certificate.
The discharged obligations shall not include any obligation under
Clauses 13 and 15 in respect of payments made prior to the effective
date of such Substitution 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
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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.
30.4 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.
30.5 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.
30.6 INCREASED COSTS
(a) Subject as provided in paragraph (b) below, 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 30.2 or
30.3 is made which results (or would but for this Clause result) at the
time thereof in amounts becoming payable under Clauses 13 or 15.1, 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.
(b) The provisions of paragraph (a) above shall not apply in relation to
any assignment, transfer or novation of or with respect to the rights
and/or obligations of the Original Banks, provided that the same is
effected by the relevant Original Bank within six months from the date
of this Agreement.
31. DISCLOSURE OF INFORMATION
31.1 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 Transaction 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 relating to the Transaction Documents and/or the Reports,
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;
<PAGE>
100
(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 31.1 shall supersede any undertakings
with respect to confidentiality previously given by any Finance Party
in favour of any Obligor.
31.2 SUB-PARTICIPANTS
Notwithstanding Clause 31.1, 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.
31.3 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.
32. 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 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.
<PAGE>
101
33. PRO RATA SHARING
33.1 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 12 (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 12;
(c) subject to Clause 33.3 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 12 and shall pay the
redistribution to the Finance Parties (other than the recovering
Finance Party) in accordance with Clause 12.6; 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.
33.2 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 33.1(e) will operate in reverse to the extent of the reimbursement.
33.3 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 33.1(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.
<PAGE>
102
33.4 LOSS SHARING
Without prejudice to Clause 33.1, if it transpires for any reason that any
amount owing by an Obligor under any Finance Document to a Finance Party
remains undischarged and for any reason any resulting losses are not being
borne by the Banks and the Hedging Bank pro rata to the amount which their
respective participation in the Advances (including amounts under any
Ancillary Facility) bore to the aggregate of all Advances outstanding on
the date on which the Facility Agent gives notice to the Parent pursuant
to Clause 23.2(b), (c) (and demand has been made thereunder) or (d)
(PROVIDED THAT for this purpose the aggregate of all Advances outstanding
will be notionally increased by an aggregate amount calculated in
accordance with Schedule 7 with respect to any Bank's interest in the
Hedging Documents, and shall be deemed to be increased by an amount equal
to the aggregate amounts outstanding under any Ancillary Facility the
Banks and the Hedging Bank shall make such payments inter se as shall be
required to ensure that after taking into account such payments such
losses are borne by the Banks in their capacity as such) and the Hedging
Bank pro rata.
34. 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.
35. 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.
36. NOTICES
36.1 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.
<PAGE>
103
36.2 ADDRESSES FOR NOTICES
The address and facsimile number of each Party for all notices under or in
connection with this Agreement are:
(i) as specified in Schedule 1 or 2, as the case may be, or in the
Substitution 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
(ii) 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.
37. JURISDICTION
37.1 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.
37.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, each Obligor:
(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 36.2 (Addresses for notices).
Getty U.K. hereby irrevocably accepts such appointment by each other
Obligor.
37.3 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.
<PAGE>
104
37.4 NON-EXCLUSIVITY
Nothing in this Clause 37 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.
37.5 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 setoff, counterclaim or
cross-claim except to the extent that the failure so to assert any such
setoff, counterclaim or cross-claim would permanently preclude the
prosecution of or recovery upon same. The Obligors agree that this
Clause 37.5 is a specific and material aspect of this Agreement and
acknowledge that the Banks would not make the Facilities available if this
Clause 37.5 were not part of this Agreement.
38. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
<PAGE>
105
SCHEDULE 1
VARIOUS PARTIES
PART I
ORIGINAL BORROWERS
TRANCHE A BORROWER
Getty Images, Inc.
TRANCHE B BORROWER
Getty Communications plc
TRANCHE C BORROWERS
Getty Communications plc
Getty Images Limited
ADDRESS FOR NOTICES FOR EACH BORROWER REFERRED TO ABOVE
101 Bayham Street
London
NW1 0AG
Attention: Lawrence Gould
Fax: 0171 267 6540
<PAGE>
106
PART II
ORIGINAL GUARANTORS
Getty Images, Inc.
Getty Images (U.S.), Inc.
Tony Stone Images/America Inc.
Tri-Energy Productions, Inc.
Liaison Agency, Inc.
Fabulous Footage Inc.
Tony Stone Images/Chicago Inc.
Tony Stone Images/New York Inc.
Tony Stone Images/Los Angeles Inc.
Tony Stone Images/Seattle Inc.
Getty Communications Plc
Getty Communications Group Finance Limited
Hulton Getty Holdings Limited
Hulton Getty Picture Collection Limited
Getty Images Limited
Gamma Liaison, Inc.
Liaison International, Inc.
Print Merger, Inc. (to be renamed PhotoDisc, Inc.)
ADDRESS FOR NOTICES FOR EACH GUARANTOR REFERRED TO ABOVE
101 Bayham Street
London
NW1 0AG
Attention: Lawrence Gould
Fax: 0171 267 6540
<PAGE>
107
SCHEDULE 2
BANKS AND COMMITMENTS
<TABLE>
<CAPTION>
BANKS AND NOTICE
DETAILS TRANCHE COMMITMENTS
<S> <C> <C>
Midland Bank plc A $24,000,000
B L16,000,000
31 Holborn C L6,750,000
London
EC1N 2HR
</TABLE>
Address for notices:
27/32 Poultry
London
EC2P 2BX
Attention: Midland Corporate Banking
Fax: 0171 260 4800
With a copy to:
31 Holborn
London
EC1N 2HR
Attention: Shirley Sinclair
Fax: 0171 599 6670
<PAGE>
108
SCHEDULE 3
CONDITIONS PRECEDENT DOCUMENTS
PART I
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, 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, whether
pursuant to the board resolution referred to in paragraph (a) above
or pursuant to registration at the commercial registry;
(c) a certificate of a director of each Borrower (or, for each U.S.
Borrower, by one of its officers) confirming that utilisation of
that part of the Facilities available to it in full would not cause
any borrowing limit binding on it to be exceeded;
(d) a certified copy of a resolution, passed by all the holders of the
issued or allotted shares in each Obligor, approving the terms of,
and the transactions contemplated by, the Finance Documents to which
such Obligor is to be a party; and
(e) a copy of the authorisation of the person/s acting for each U.S.
Obligor in relation to the transactions contemplated by this
Agreement, each being in the United States of America on the Closing
Date.
3. A certified copy (or originals) of the duly executed Acquisition
Agreements and all other Transaction Documents.
4. A certified 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 Base Financial Statements and the Financial
Forecasts.
<PAGE>
109
7. Satisfactory results to all company searches and land priority/charge
searches relating to each Obligor.
8. The Disclosure Letter.
9. Each of the Reports.
10. Releases for all existing Encumbrances registered in respect of any assets
of any member of the Group, save those Encumbrances permitted by Clause
21.6.
11. Requests in relation to all Utilisations to be made at Closing, together
with payment instructions in respect of all funds in the Closing Accounts.
12. Funds Flow Statement (to the extent not included in the Structure
Memorandum).
13. 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;
(c) Oppenhoff & Radler, German legal advisers to the Facility Agent,
addressed to the Finance Parties;
(d) Jeantet et Associes, French legal advisers to the Facility Agent,
addressed to the Finance Parties;
(e) Shearman & Sterling, U.S. legal counsel to the Parent, addressed to
the Finance Parties.
14. Evidence that all Borrowings not permitted pursuant to Clause 21.10 have
been repaid.
15. (a) Evidence that the Parent owns at Closing legally and beneficially,
subject to stamping and registration (where appropriate), all the
issued shares in Getty U.K. and Print Merger, Inc. (to be renamed
PhotoDisc); and (b) evidence that Print Merger, Inc. owns at Closing
legally and beneficially exclusive rights to use the name PhotoDisc
and relevant trading names.
16. 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.
17. Certificate signed by two directors of the Parent confirming that:
(i) all authorisations required in order that the Acquisition may
lawfully be effected and that the Acquired Assets may be owned by
the Parent and its Subsidiaries have been obtained and are in
effect;
<PAGE>
110
(ii) no material litigation or arbitration, and no material
administrative or regulatory proceedings or enquiry, is current,
pending or threatened in relation to, or likely to result from, the
Acquisition and no material labour dispute involving any member of
the Group as it will be constituted immediately after Closing is
current, pending or threatened;
(iii) neither the Parent nor any of its Subsidiaries has amended or waived
or agreed to amend or waive any provision of the Acquisition
Agreements or elected to complete the Acquisition in circumstances
where it would be entitled to decline to do so; and
(iv) all action required to effect the registration of the transfers of
stock and shares in (subject to stamping) Getty U.K. and PhotoDisc
and the issue of Shares in the Parent contemplated by the Merger
Agreement and the Scheme of Arrangement has been taken.
18. (a) Evidence that the section 155-158 whitewash procedure has been
completed by each relevant Obligor incorporated in England or Wales
including copies of the Auditor's report in relation to it and a
copy of the up to date register of directors of each such Obligor;
and
(b) A net asset letter from the Auditors addressed to the Facility Agent
and the Banks.
19. A solvency statement of the chief financial officer of each U.S. Obligor.
20. Structure Memorandum.
<PAGE>
111
PART II
Each of the documents referred to in paragraphs 1, 2, 4, 7 and 13 relating to
any Additional Borrower or Additional Guarantor.
<PAGE>
112
SCHEDULE 4
FORM OF REQUEST
To: HSBC Investment Bank plc as Facility Agent
Attention: [ ]
From: [BORROWER]
Date:[ ]
GETTY IMAGES, INC.
U.S.$24,000,000 TERM LOAN FACILITY, L16,000,000] TERM LOAN FACILITY,
AND L6,750,000 REVOLVING CREDIT FACILITY AGREEMENT
DATED 6TH FEBRUARY, 1998
(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) Tranche: [ ]
(c) Utilisation Date: [ ]
(d) Original Sterling Amount/amount: [L ]
(e) Currency: [Dollars/Sterling/
Deutschmarks/French Francs]
(f) Term: [ ]
(g) Payment Instructions: [ ].
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Request.
Yours faithfully,
........................................
for and on behalf of
GETTY IMAGES, INC.
as Obligors' Agent
<PAGE>
113
SCHEDULE 5
FORMS OF ACCESSION DOCUMENTS
PART I
SUBSTITUTION CERTIFICATE
To: HSBC Investment Bank plc as Facility Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
GETTY IMAGES, INC.
U.S.$24,000,000 TERM LOAN FACILITY, L16,000,000 TERM LOAN FACILITY,
AND L6,750,000 REVOLVING CREDIT FACILITY AGREEMENT
DATED 6TH FEBRUARY, 1998
(THE "CREDIT AGREEMENT")
References to Clauses are to Clauses of the Credit Agreement.
We refer to Clause 30.3.
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 30.3.
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 30.3(c) is [date of
novation].
4. The Facility Office and address for notices of the New Bank for the
purposes of Clause 36.2 are set out in the Schedule.
5. The Existing Bank and the New Bank acknowledge and agree that Clauses
30.2(d), (e), (f) and (g) apply to this Substitution 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 Substitution Certificate is governed by English law.
<PAGE>
114
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>
115
PART II
BORROWER ACCESSION AGREEMENT
To: HSBC Investment Bank plc as Facility Agent
From: [PROPOSED BORROWER] and GETTY IMAGES, INC.
[Date]
GETTY IMAGES, INC. U.S.$24,000,000
TERM LOAN FACILITY, L16,000,000 TERM LOAN FACILITY AND
L6,750,000 REVOLVING CREDIT FACILITY AGREEMENT
DATED 6TH FEBRUARY, 1998
(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 19.1.
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 19.1.
The address for notices of the Additional Borrower for the purposes of Clause
36.2 is:
[
]
This Agreement is governed by English law.
[ADDITIONAL BORROWER]
By:
GETTY IMAGES, INC.
By:
[Facility Agent]
By:
<PAGE>
116
PART III
GUARANTOR ACCESSION AGREEMENT
To: HSBC Investment Bank plc as Facility Agent
From: [PROPOSED GUARANTOR]
Date: [ ]
GETTY IMAGES, INC. U.S.$24,000,000
TERM LOAN FACILITY, L16,000,000 TERM LOAN FACILITY AND
L6,750,000 REVOLVING CREDIT FACILITY AGREEMENT
DATED 6TH FEBRUARY, 1998
(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 19.2.
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 19.2.
Our address for notices for the purposes of Clause 36.2 is:
[ ]
This Deed is governed by English law.
[EXECUTION AS A DEED
BY PROPOSED GUARANTOR]
GETTY IMAGES, INC.
By:
[Facility Agent]
By:
<PAGE>
117
SCHEDULE 6
SECURITY DOCUMENTS
1. Security over the shares of each of:
Getty Images (U.S.), Inc.
Tony Stone Images/America Inc.
Liaison Agency, Inc.
Fabulous Footage, Inc.
Tony Stone Images/Chicago Inc.
Tony Stone Images/New York Inc.
Tony Stone Images/Los Angeles Inc.
Getty Communications Plc
Getty Communications Group Finance Limited
Hulton Getty Holdings Limited
Hulton Getty Picture Collection Limited
Getty Images Limited
Fotogram - Stone Sarl
Tony Stone Associates GmbH Agentur fur visuelle Medien
ArtCast Corporation
Gamma Liaison, Inc.
Liaison International, Inc.
Tri-Energy Productions, Inc.
Print Merger, Inc. (to be renamed PhotoDisc Inc.)
Allsport Photographic plc
2. Debenture or general business charge from:
Getty Images, Inc.
Getty Images (U.S.), Inc.
Tony Stone Images/America Inc.
Liaison Agency, Inc.
Fabulous Footage Inc.
Tony Stone Images/Chicago Inc.
Tony Stone Images/New York Inc.
Tony Stone Images/Los Angeles Inc.
Tony Stone Images/Seattle Inc.
ArtCast Corporation
Gamma Liaison, Inc.
Liaison International, Inc.
Triernergy Productions
Getty Communications Plc
Getty Communications Group Finance Limited
Hulton Getty Holdings Limited
Hulton Getty Picture Collection Limited
Getty Images Limited
Print Merger, Inc. (to be renmed PhotoDisc, Inc.)
<PAGE>
118
3. Charge over trademarks (U.S. law) from:
Getty Communications plc
Getty Images Limited
<PAGE>
119
SCHEDULE 7
CALCULATION OF HEDGING LIABILITIES
1. For hedging transactions having remaining life of less than one year: NIL.
2. For hedging transactions having an original life in excess of one year, an
amount calculated according to the following formula:
Nominal amount
------------- x 2.0(2.5 x (maturity - 1)+3)
100
where the maturity is expressed as the number of years remaining in the
life of the transaction.
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120
SCHEDULE 8
CALCULATION OF THE ADDITIONAL COST
(1) The MLA Cost relative to each Advance where (and to the extent that) Banks
making such Advance are subject to the Mandatory Liquid Asset requirements
of the Bank of England, will be, subject as hereinafter provided, for the
Interest Period relating to such Advance (or, if longer than three months,
for each consecutive period of three months within such Interest Period
and for any balance of such Interest Period) (which Interest Period if not
longer than three months and each other such period is herein referred to
as a "RELEVANT PERIOD") the percentage rate supplied by the Facility Agent
arrived at by applying the following formula:
MLA Cost = BY + L(Y-X) + S(Y-Z) % per annum
---------------------
100-(B + S)
Where:
B = The percentage of the Facility Agent's eligible liabilities
then required to be held on a non-interest-bearing deposit
account with the Bank of England pursuant to the cash ratio
requirements of the Bank of England.
Y = The rate at which Sterling deposits in an amount approximately
equal to the principal amount of such Advance are offered by
the Facility Agent to leading banks in the London Interbank
Market at or about 11.00 a.m. on that day for a period
comparable to the Relevant Period in relation to such Advance.
L = The percentage of eligible liabilities which the Bank of
England from time to time requires the Facility Agent to
maintain as secured money with members of the London Discount
Market Association and/or as secured call money with those
money brokers and gilt-edged market makers recognised by the
Bank of England.
X = The rate at which secured Sterling deposits in an amount
approximately equal to the principal amount of such Advance
may be placed by the Facility Agent with members of the London
Discount Market Association and/or as secured call money with
money brokers and gilt-edged market makers at or about
11.00 a.m. on that day for a period comparable to the Relevant
Period in relation to such Advance.
S = The percentage of the Facility Agent's eligible liabilities
then required to be placed as a special deposit with the Bank
of England.
Z = The percentage interest rate per annum allowed by the Bank of
England on special deposits.
For the purposes of this paragraph "ELIGIBLE LIABILITIES" and "SPECIAL
DEPOSITS" shall bear the meanings ascribed to them from time to time by
the Bank of England.
<PAGE>
121
(2) In the application of the above formula, B, Y, L, X, S and Z will be
included in the formula as figures and not as percentages, e.g. if B =
0.5% and Y = 15%, BY will be calculated as 0.5 x 15 and not as 0.5% x 15%.
(3) The MLA Cost computed by the Facility Agent in accordance with this
schedule shall be rounded upward, if necessary, to four decimal places.
(4) The calculation in respect of the MLA Cost for each Advance denominated in
Sterling will be made by the Facility Agent on the first day of each
Relevant Period.
(5) Calculations will be made on the basis of a year of 365 days and the
actual number of days elapsed.
(6) In the event of a change in circumstances (including the imposition of
alternative or additional official requirements, excluding capital
adequacy requirements) which renders the above formula inappropriate in
the reasonable opinion of the Facility Agent, the Facility Agent shall
promptly notify the Banks thereof and shall notify the Parent of the
manner in which the Additional Cost shall thereafter be determined (which
manner shall be determined in a bona fide manner and provide a fair
assessment of the MLA Cost) and the Obligors and the Banks shall be bound
thereby.
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122
SCHEDULE 9
MATERIAL SUBSIDIARIES
Allsport Photographic plc
All-sport (UK) Limited
Tony Stone Images/Chicago, Inc.
Tony Stone Images/New York, Inc.
Tony Stone Images/Los Angeles, Inc.
Tony Stone Images/Seattle, Inc.
Allsport Photography (US) Inc.
PhotoDisc Europe Limited
Hulton Getty Picture Collection Limited
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123
SCHEDULE 10
HEDGING DOCUMENTS
1. Interest rate swap dated 16th March, 1995 with a maturity of 16th
September, 1998 at a notional amount of L3,500,000 at a rate of 8.54%,
subject to the terms of an ISDA Master Agreement (1992) dated 16th March,
1995.
2. Interest rate swap dated 1st May, 1996 with a maturity of 1st May, 2001 at
a notional amount of L3,000,000 at a rate of 7.79%, subject to the terms
of an ISDA Master Agreement (1992) dated 16th March, 1995.
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124
SIGNATORIES
PARENT
GETTY IMAGES, INC.
By: J. KLEIN
ORIGINAL BORROWERS
GETTY IMAGES, INC.
By: J. KLEIN
GETTY COMMUNICATIONS PLC
By: M. GETTY
GETTY IMAGES LIMITED
By: M. GETTY
ORIGINAL GUARANTORS
GETTY IMAGES, INC.
By: J. KLEIN
PRINT MERGER, INC.
By: J. KLEIN
GETTY IMAGES (U.S.) INC.
By: J. KLEIN
TONY STONE IMAGES/AMERICA INC.
By: J. SOBEL
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125
LIAISON AGENCY, INC.
By: J. KLEIN
FABULOUS FOOTAGE, INC.
By: A. DUNCOMB
TONY STONE IMAGES/CHICAGO INC.
By: J. SOBEL
TONY STONE IMAGES/NEW YORK INC.
By: J. SOBEL
TONY STONE IMAGES/LOS ANGELES INC.
By: J. SOBEL
TONY STONE IMAGES/SEATTLE INC.
By: J. SOBEL
GETTY COMMUNICATIONS PLC
By: M. GETTY
GETTY COMMUNICATIONS GROUP FINANCE LIMITED
By: M. GETTY
HULTON GETTY HOLDINGS LIMITED
By: M. GETTY
HULTON GETTY PICTURE COLLECTION LIMITED
By: M. GETTY
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126
GETTY IMAGES LIMITED
By: M. GETTY
GAMMA LIAISON, INC.
By: J. KLEIN
LIAISON INTERNATIONAL, INC.
By: J. KLEIN
TRI-ENERGY PRODUCTIONS, INC.
By: J. KLEIN
ARRANGER
MIDLAND BANK PLC
By: D. KEEBLE
ORIGINAL BANK
MIDLAND BANK PLC
By: D. KEEBLE
FACILITY AGENT
HSBC INVESTMENT BANK PLC
By: J. HAIRE
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127
SECURITY AGENT
HSBC INVESTMENT BANK PLC
By: J. HAIRE