EXECUTION COPY
Exhibit 10.30
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CREDIT AGREEMENT
Dated as of
October 11, 2001
among
AOL TIME WARNER INC.,
as Borrower
The Lenders Party Hereto,
HSBC BANK USA,
THE ROYAL BANK OF SCOTLAND PLC,
BNP PARIBAS,
COMMERZBANK AG,
THE FUJI BANK, LIMITED
as Agents,
BARCLAYS BANK PLC,
as Documentation Manager
(pound)550,000,000 364-DAY REVOLVING CREDIT FACILITY
(FACILITY B AGREEMENT)
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TABLE OF CONTENTS
Page
ARTICLE I Definitions .......................................................... 1
SECTION 1.01. Defined Terms ............................................ 1
SECTION 1.02. Classification of Loans and Borrowings ................... 21
SECTION 1.03. Terms Generally .......................................... 21
SECTION 1.04. Accounting Terms; GAAP ................................... 21
ARTICLE II The Credits ......................................................... 22
SECTION 2.01. Commitments .............................................. 22
SECTION 2.02. Loans and Borrowings ..................................... 22
SECTION 2.03. Requests for Revolving Borrowings ........................ 23
SECTION 2.04. Swingline Loans .......................................... 24
SECTION 2.05. Letters of Credit ........................................ 25
SECTION 2.06. Funding of Borrowings .................................... 28
SECTION 2.07. Interest Elections ....................................... 29
SECTION 2.08. Termination and Reduction of Commitments ................. 30
SECTION 2.09. Repayment of Loans; Evidence of Debt ..................... 31
SECTION 2.10. Prepayment of Loans ...................................... 31
SECTION 2.11. Fees ..................................................... 32
SECTION 2.12. Interest ................................................. 33
SECTION 2.13. Alternate Rate of Interest ............................... 34
SECTION 2.14. Increased Costs .......................................... 34
SECTION 2.15. Break Funding Payments ................................... 36
SECTION 2.16. Taxes .................................................... 36
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs 37
SECTION 2.18. Mitigation Obligations; Replacement of Lenders ........... 39
SECTION 2.19. Prepayments Required Due to Currency Fluctuation ......... 40
SECTION 2.20. Adoption of the Euro ..................................... 40
ARTICLE III Representations and Warranties ..................................... 40
SECTION 3.01. Organization; Powers ..................................... 41
SECTION 3.02. Authorization; Enforceability ............................ 41
SECTION 3.03. Governmental Approvals; No Conflicts ..................... 41
SECTION 3.04. Financial Condition; No Material Adverse Change .......... 41
SECTION 3.05. Properties ............................................... 42
SECTION 3.06. Litigation and Environmental Matters ..................... 42
SECTION 3.07. Compliance with Laws and Agreements ...................... 42
SECTION 3.08. Government Regulation .................................... 43
SECTION 3.09. Taxes .................................................... 43
SECTION 3.10. ERISA .................................................... 43
SECTION 3.11. Disclosure ............................................... 43
ARTICLE IV Conditions .......................................................... 44
SECTION 4.01. Effective Date ........................................... 44
SECTION 4.02. Each Credit Event ........................................ 44
ARTICLE V Affirmative Covenants ................................................ 45
SECTION 5.01. Financial Statements and Other Information ............... 45
SECTION 5.02. Notices of Material Events ............................... 47
SECTION 5.03. Existence; Conduct of Business ........................... 47
SECTION 5.04. Payment of Obligations ................................... 47
SECTION 5.05. Maintenance of Properties; Insurance ..................... 48
SECTION 5.06. Books and Records; Inspection Rights ..................... 48
SECTION 5.07. Compliance with Laws ..................................... 48
SECTION 5.08. Use of Proceeds .......................................... 48
SECTION 5.09. Fiscal Periods; Accounting ............................... 49
ARTICLE VI Negative Covenants .................................................. 49
SECTION 6.01. Financial Covenants ...................................... 49
SECTION 6.02. Indebtedness ............................................. 49
SECTION 6.03. Liens .................................................... 50
SECTION 6.04. Mergers, Etc ............................................. 51
SECTION 6.05. Investments .............................................. 52
SECTION 6.07. Transactions with Affiliates ............................. 52
SECTION 6.08. Unrestricted Subsidiaries ................................ 52
ARTICLE VII Events of Default .................................................. 53
ARTICLE VIII THE AGENTS & THE DOCUMENTATION MANAGER ............................ 55
ARTICLE IX Miscellaneous ....................................................... 58
SECTION 9.01. Notices .................................................. 58
SECTION 9.02. Waivers; Amendments ...................................... 59
SECTION 9.03. Expenses; Indemnity; Damage Waiver ....................... 59
SECTION 9.04. Successors and Assigns ................................... 60
SECTION 9.05. Survival ................................................. 63
SECTION 9.06. Counterparts; Integration; Effectiveness ................. 63
SECTION 9.07. Severability ............................................. 64
SECTION 9.08. Right of Setoff .......................................... 64
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process 64
SECTION 9.10. WAIVER OF JURY TRIAL ..................................... 65
SECTION 9.11. Headings ................................................. 65
SECTION 9.12. Confidentiality .......................................... 65
SECTION 9.13. Acknowledgements ......................................... 66
SECTION 9.14. Judgment Currency ........................................ 66
SCHEDULES:
Schedule 1.01 - Mandatory Cost Rate
Schedule 2.01 - Commitments
Schedule 2.03(A) - Borrowing Notice/Interest Election Notice/Prepayment Notice
Schedule 2.03(B) - Authorized Account Numbers & Locations
Schedule 6.08 - Unrestricted Subsidiaries
Schedule 8 - List of Proper Persons
EXHIBITS:
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Guarantee
364-DAY CREDIT AGREEMENT (as amended, supplemented or otherwise modified
from time to time, this "Agreement") dated as of October 11, 2001, among AOL
TIME WARNER INC., a Delaware corporation (the "Borrower"), the several banks and
other financial institutions from time to time parties to this Agreement (the
"Lenders"), HSBC BANK USA, THE ROYAL BANK OF SCOTLAND PLC, BNP PARIBAS,
COMMERZBANK AG and THE FUJI BANK, LIMITED as agents (each, in such capacity an
"Agent") and BARCLAYS BANK PLC as documentation manager (in such capacity, the
"Documentation Manager").
WHEREAS, the Borrower has requested the Lenders to make loans to it in an
aggregate amount of up to (pound)550,000,000 as more particularly described
herein;
WHEREAS, the Lenders are willing to make such loans on the terms and
conditions contained herein;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR" when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted Financial Statements" means, for any period, (a) the balance
sheet of the Borrower and its Restricted Subsidiaries (treating Unrestricted
Subsidiaries as equity investments of the Borrower to the extent that such
Unrestricted Subsidiaries would not otherwise be treated as equity investments
of the Borrower in accordance with GAAP) as of the end of such period and (b)
the related statements of operations and stockholders equity for such period
and, if such period is not a fiscal year, for the then elapsed portion of the
fiscal year (treating Unrestricted Subsidiaries as equity investments of the
Borrower to the extent that such Unrestricted Subsidiaries would not otherwise
be treated as equity investments of the Borrower in accordance with GAAP).
"Adjusted LIBO Rate" means, with respect to any Eurocurrency Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next Basis Point) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Documentation Manager.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under
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common Control with the Person specified; provided, that two or more Persons
shall not be deemed Affiliates because an individual is a director and/or
officer of each such Person.
"Agents" means the collective reference to the Agents listed in the
preamble hereto.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"America Online" means America Online, Inc., a Delaware corporation.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any Loan (other than
an ABR Loan) or the Facility Fee payable hereunder, as the case may be, the
applicable rate per annum set forth below expressed in Basis Points under the
caption "Eurocurrency Spread" or "Facility Fee Rate", as the case may be, based
upon the corporate credit ratings (or an equivalent thereof, including, in the
case of Moody's, and until such time as Moody's may assign a corporate credit
rating to the Borrower, the senior unsecured long term debt credit rating) (in
each case, a "Rating") assigned by Moody's and S&P, respectively, applicable on
such date to the Borrower:
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Ratings Eurocurrency Facility Fee
S&P / Moody's Spread Rate
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Category A 28.0 7.0
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A / A2
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Category B
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A- / A3 32.0 8.0
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Category C
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BBB+ / Baa1 36.0 9.0
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Category D 50.0 12.5
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BBB / Baa2
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Category E 62.5 17.5
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BBB- / Baa3
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Category F 75.0 25.0
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Lower than BBB- /Baa3
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For purposes of the foregoing, (a) if either Moody's or S&P shall not have
in effect a Rating for the Borrower (other than by reason of the circumstances
referred to in clause (c) of this definition), then the Rating assigned by the
other rating agency shall be used; (b) if the
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Ratings for the Borrower assigned by Moody's and S&P shall fall within different
Categories, the Applicable Rate shall be based on the higher of the two Ratings
unless one of the two Ratings is two or more Categories lower than the other, in
which case the Applicable Rate shall be determined by reference to the Category
next below that of the higher of the two ratings; (c) if either rating agency
shall cease to assign a Rating for the Borrower solely because the Borrower
elects not to participate or otherwise cooperate in the ratings process of such
rating agency, the Applicable Rate shall not be less than that before such
rating agency's Rating for the Borrower became unavailable; and (d) if the
Ratings for the Borrower assigned by Moody's and S&P shall be changed (other
than as a result of a change in the rating system of Moody's or S&P), such
change shall be effective as of the date on which it is first announced by the
applicable rating agency. Each change in the Applicable Rate shall apply during
the period commencing on the effective date of such change and ending on the
date immediately preceding the effective date of the next such change. If the
rating system of Moody's or S&P shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obligations, the
Borrower and the Lenders shall negotiate in good faith to amend this definition
to reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the
Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Documentation Manager, in the
form of Exhibit A or any other form approved by the Documentation Manager.
"Availability Period" means the period from and including the Effective
Date to but excluding the Commitment Termination Date.
"Barclays" means Barclays Bank PLC.
"Basis Point" means 1/100th of 1%.
"Base Rate" means (a) with respect to Dollar denominated Loans, the ABR,
(b) with respect to Pound Sterling denominated Loans, the Pound Sterling
Overnight Rate, (c) with respect to Euro denominated Loans, the Euro Overnight
Rate and (d) with respect to Yen denominated Loans, the Yen Overnight Rate.
"Board" means the Board of Governors of the Federal Reserve System of the
United States.
"Borrower" has the meaning assigned to such term in the preamble hereto.
"Borrowing" means (a) Revolving Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurocurrency Loans, as to which a
single Interest Period is in effect or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
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"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed; provided that, (a) when used in connection with a Eurocurrency
Loan, a Base Rate Loan (other than an ABR Loan) or a Pound Sterling Quoted Rate
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in deposits in the applicable currency in the London interbank
market, (b) when used in connection with any Loan denominated in Euro, the term
"Business Day" shall also exclude any day on which the TARGET payment system is
not open for the settlement of payment in Euro and (c) when used in connection
with a Base Rate Loan denominated in Yen, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in deposits in Yen in
Tokyo.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means, with respect to any Person, any and all shares,
partnership interests or other equivalents (however designated and whether
voting or non-voting) of such Person's equity, whether outstanding on the date
hereof or hereafter issued, and any and all equivalent ownership interests in a
Person (other than a corporation) and any and all rights, warrants or options to
purchase or acquire or exchangeable for or convertible into such shares,
partnership interests or other equivalents.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is pledged
in support thereof) that (i) have maturities of not more than six months from
the date of acquisition thereof or (ii) are subject to a repurchase agreement
with an institution described in clause (b)(i) or (ii) below exercisable within
six months from the date of acquisition thereof, (b) U.S. Dollar-denominated and
Eurocurrency time deposits, certificates of deposit and bankers' acceptances of
(i) any domestic commercial bank of recognized standing having capital and
surplus in excess of $500,000,000 or (ii) any bank whose short-term commercial
paper rating from S&P is at least A-2 or the equivalent thereof or from Xxxxx'x
is at least P-2 or the equivalent thereof (any such bank, an "Approved Lender"),
in each case with maturities of not more than six months from the date of
acquisition thereof, (c) commercial paper and variable and fixed rate notes
issued by any Lender or Approved Lender or by the parent company of any Lender
or Approved Lender and commercial paper and variable rate notes issued by, or
guaranteed by, any industrial or financial company with a short-term commercial
paper rating of at least A-2 or the equivalent thereof by S&P or at least P-2 or
the equivalent thereof by Moody's, and in each case maturing within six months
after the date of acquisition thereof, (d) securities with maturities of one
year or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or
by any foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing authority or foreign government (as the
case may be) are rated at least A by S&P or A by Moody's, (e) securities with
maturities of six months or less from the date of acquisition backed
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by standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition, (f) tax-exempt
commercial paper of U.S. municipal, state or local governments rated at least
A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof
by Moody's and maturing within six months after the date of acquisition thereof,
(g) shares of money market mutual or similar funds sponsored by any registered
broker dealer or mutual fund distributor, (h) repurchase obligations entered
into with any bank meeting the qualifications of clause (b) above or any
registered broker dealer whose short-term commercial paper rating from S&P is at
least A-2 or the equivalent thereof or from Xxxxx'x is at least P-2 or the
equivalent thereof, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States government
or residential whole loan mortgages, and (i) demand deposit accounts maintained
in the ordinary course of business.
"Change in Control" means either (a) a Person or "group" (within the
meaning of Section 13(d) and 14(d) of the Exchange Act) acquiring or having
beneficial ownership (it being understood that a tender of shares or other
equity interests shall not be deemed acquired or giving beneficial ownership
until such shares or other equity interests shall have been accepted for
payment) of securities (or options to purchase securities) having a majority or
more of the ordinary voting power of the Borrower (including options to acquire
such voting power) or (b) persons who are directors of the Borrower as of the
date hereof or persons designated or approved by such directors ceasing to
constitute a majority of the board of directors of the Borrower.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender (or, for purposes of
Section 2.14(b), by any lending office of such Lender or by such Lender's
holding company, if any) with any request, guideline or directive of any
Governmental Authority made or issued after the date of this Agreement.
"Class" when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans or
Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and/or to acquire participations in Swingline
Loans and Letters of Credit hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section 2.08
or Section 2.19 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender's Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Commitment, as
applicable.
"Commitment Termination Date" means the earlier of (a) the Business Day
immediately preceding the first anniversary of the Effective Date and (b) the
date on which the Commitments shall terminate in accordance with the provisions
of this Agreement.
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"Conduit Lender" means any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument,
subject to the consent of the Borrower (which consent shall not be unreasonably
withheld); provided, that the designation by any Lender of a Conduit Lender
shall not relieve the designating Lender of any of its obligations to fund a
Loan under this Agreement if, for any reason, its Conduit Lender fails to fund
any such Loan, and the designating Lender (and not the Conduit Lender) shall
have the sole right and responsibility to deliver all consents and waivers
required or requested under this Agreement with respect to its Conduit Lender,
and provided, further, that no Conduit Lender shall (a) be entitled to receive
any greater amount pursuant to Section 2.14, 2.15, 2.16 or 9.03 than the
designating Lender would have been entitled to receive in respect of the Loans
made by such Conduit Lender or (b) be deemed to have any Commitment. The making
of a Loan by a Conduit Lender hereunder shall utilize the Commitment of a
designating Lender to the same extent, and as if, such Loan were made by such
designating Lender.
"Consolidated EBITDA" means, for any period for any Person, the
Consolidated Net Income of such Person for such period plus, without duplication
and to the extent reflected as a charge in the statement of such Consolidated
Net Income for such period, the sum of (a) income tax expense, (b) interest
expense, amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness
(including the Loans), (c) depreciation and amortization expense (excluding
amortization of film inventory that does not constitute amortization of purchase
price amortization), (d) amortization of intangibles (including, but not limited
to, goodwill) and organization costs (excluding amortization of film inventory
that does not constitute amortization of purchase price amortization), (e) any
extraordinary, unusual or non-recurring non-cash expenses or losses (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, non-cash losses on sales of assets
outside of the ordinary course of business), and (f) minority interest expense
in respect of preferred stock of Subsidiaries of such Person, and minus, to the
extent included in the statement of such Consolidated Net Income for such
period, the sum of (a) interest income and (b) any extraordinary, unusual or
non-recurring income or gains (including, whether or not otherwise includable as
a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of
business), all as determined on a consolidated basis.
"Consolidated Leverage Ratio" means, as at the last day of any period of
four consecutive fiscal quarters for any Person, the ratio of (a) Consolidated
Total Debt of such Person on such day to (b) Consolidated EBITDA of such Person
(and its Restricted Subsidiaries only, in the case of the Borrower) for such
period, provided that the Consolidated Leverage Ratio for the Borrower shall be
calculated, with respect to quarters ended on or prior to December 31, 2000, on
a pro forma basis consistent with the preparation of financial statements
delivered pursuant to Section 3.04(b).
"Consolidated Net Income" means, for any period for any Person, the
consolidated net income (or loss) of such Person and its consolidated
Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded, without duplication (a) the income (or
deficit) of any Person accrued prior to the date it becomes a
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Subsidiary of such Person or is merged into or consolidated with such Person or
any of its Subsidiaries or that such other Person's assets are acquired by such
Person or any of its Subsidiaries, (b) the income (or deficit) of any Person
(other than (i) in the case of the Borrower, a Restricted Subsidiary and (ii) in
the case of any other Person, a Subsidiary of such Person) in which such Person
or any of its Subsidiaries has an ownership interest, except to the extent that
any such income is actually received by such Person (or (i) in the case of the
Borrower, its Restricted Subsidiary and (ii) in the case of any other Person,
its Subsidiaries) in the form of dividends or similar distributions and (c) the
undistributed earnings of any Subsidiary of such Person to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of its charter or any agreement or
instrument (other than any Credit Document), judgment, decree, order, statute,
rule, governmental regulation or other requirement of law applicable to such
Subsidiary; provided that the income of any Subsidiary of such Person shall not
be excluded by reason of this clause (c) so long as such Subsidiary guarantees
the Obligations of such Person.
"Consolidated Net Worth" means at any date, all amounts that would, in
conformity with GAAP, be included on a consolidated balance sheet of the
Borrower and its Subsidiaries under stockholders' equity at such date; provided
that such amounts shall be calculated in accordance with Section 1.04.
"Consolidated Total Assets" means at any date, all amounts that would, in
conformity with GAAP, be included on a consolidated balance sheet of the
Borrower and its Subsidiaries under total assets at such date; provided that
such amounts shall be calculated in accordance with Section 1.04.
"Consolidated Total Debt" means, at any date, (a) with respect to the
Borrower, the aggregate principal amount of Indebtedness of the Borrower and its
Restricted Subsidiaries minus (i) the aggregate principal amount of any such
Indebtedness that is payable either by its terms or at the election of the
obligor in equity securities of the Borrower or the proceeds of options in
respect of such equity securities, (ii) the aggregate amount of any Stock Option
Loans, (iii) the aggregate principal amount of Film Financings and (iv) the
aggregate amount of cash and Cash Equivalents held by the Borrower or any of its
Restricted Subsidiaries in excess of $200,000,000 and (b) for purposes of
Section 6.02(b) (until such time as TWE becomes a Guarantor, at which time this
clause (b) shall cease to apply), the aggregate principal amount of Indebtedness
of TWE and its Subsidiaries minus (i) the aggregate principal amount of any such
Indebtedness that is payable either by its terms or at the election of the
obligor in equity securities of TWE or the proceeds of options in respect of
such equity securities, (ii) the aggregate principal amount of Film Financings,
and (iii) the aggregate amount of cash and Cash Equivalents held by TWE or any
of its Subsidiaries, all determined on a consolidated basis in accordance with
GAAP.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
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"Copyright Liens" means any Liens granted by the Borrower or any of its
Subsidiaries on copyrights relating to movies or other programming, which movies
or other programming are subject to one or more contracts entitling the Borrower
or such Subsidiary to future payments in respect of such movies or other
programming and which contractual rights to future payments are to be
transferred by the Borrower or Subsidiary to a special purpose Subsidiary of the
Borrower or Subsidiary organized for the purpose of monetizing such rights to
future payments, provided that such Liens (a) are granted directly or indirectly
for the benefit of the special purpose Subsidiary and/or the Persons who
purchase such contractual rights to future payments from such special purpose
Subsidiary and (b) extend only to the copyrights for the movies or other
programming subject to such contracts for the purpose of permitting the
completion, distribution and exhibition of such movies or other programming.
"Credit Documents" means this Agreement, each Guarantee and each Note.
"Credit Parties" means the Borrower and the Guarantors; and "Credit Party"
means any of them.
"Currency" means Pounds or any Optional Currency.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Defaulting Lender" means any Lender which fails to make any Loan required
to be made by it in accordance with the terms and conditions of this Agreement.
"Documentation Manager" means Barclays.
"Dollars" or "$" refers to lawful money of the United States.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"EMU" means the Economic and Monetary Union as contemplated in the Treaty.
"EMU Legislation" means the legislative measures of the European Council
(including without limitation the European Council regulations) for the
introduction of, changeover to or operation of the Euro in one or more member
states.
"Environmental Law" means all applicable and binding laws, rules,
regulations, codes, ordinances, orders, decrees, judgments, injunctions, or
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) a violation
9
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) the exposure to
any Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event" means (a) any "reportable event," as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or in Section 303(d) of ERISA of
an application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by any Credit Party or any of its ERISA Affiliates of
any unfunded liability under Title IV of ERISA with respect to the termination
of any Plan; (e) the receipt by any Credit Party or any ERISA Affiliate from the
PBGC or a plan administrator of any notice relating to an intention to terminate
any Plan or Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by any Credit Party or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; (g) the receipt by any Credit Party or any ERISA Affiliate
of any notice concerning the imposition on such entity of Withdrawal Liability
or a determination that a Multiemployer Plan with respect to which such entity
is obligated to contribute or is otherwise liable is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA; or (h)
the occurrence, with respect to a Plan or a Multiemployer Plan, of a nonexempt
"prohibited transaction" (within the meaning of Section 4975 of the Code or
Section 406 of ERISA) which could reasonably be expected to result in liability
to a Credit Party.
"Euro" and "(euro)" means the single currency of Participating Member
States introduced in accordance with the provision of Article 123 of the Treaty
and, in respect of all payments to be made under this Agreement in Euro, means
immediately available, freely transferable funds.
"Eurocurrency," when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Euro Overnight Rate" means, for any day, the sum of (a) the average of the
rates per annum quoted at approximately 11:00 a.m., London time, to leading
banks in the European interbank market by the Reference Banks for the offering
of overnight deposits in Euro plus (b) the Applicable Rate. The Documentation
Manager shall determine the Euro Overnight Rate by
10
obtaining quotes from the Reference Banks, and if any such Reference Bank fails
to timely provide such quote for any day, then the Euro Overnight Rate for such
day shall be determined by the average based on the quotes from the Reference
Banks that provided quotes on that day.
"Event of Default" has the meaning assigned to such term in Article VII.
"Exchange Act" means the Securities and Exchange Act of 1934, as amended.
"Exchange Rate" means, with respect to any Optional Currency on a
particular date, the rate at which such Optional Currency may be exchanged into
Pound Sterling, as set forth at 11:00 a.m. London time on such date on page WRLD
of the Reuters Screen with respect to such Optional Currency. In the event that
such rate does not appear on the applicable Reuters currency page, the Exchange
Rate with respect to such Optional Currency shall be determined by reference to
such other publicly available service for displaying exchange rates as may be
agreed upon by the Documentation Manager and the Borrower or, in the absence of
such agreement, such Exchange Rate shall instead be the spot rate of exchange of
the Documentation Manager in the London interbank or other market where its
foreign currency exchange operations in respect of such Optional Currency are
then being conducted, at or about 11:00 a.m., London time, at such date for the
purchase of Pound Sterling with such Optional Currency, for delivery two
Business Days later; provided, however, that if at the time of any such
determination, for any reason, no such spot rate is being quoted, the
Documentation Manager may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error.
"Excluded Taxes" means, with respect to the Documentation Manager, any
Lender or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States, or by the jurisdiction
under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable lending
office is located, (b) any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction described in clause (a) above,
(c) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 2.18(b)), any withholding tax (i) that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement or designates a new lending office or
(ii) is attributable to such Foreign Lender's failure or inability to comply
with Section 2.16(f), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of such designation of a new lending
office or assignment, to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.16(a) and (d) in the case
of a Lender that is a U.S. Person, any withholding tax that is attributable to
the Lender's failure to comply with Section 2.16(g).
"Facility A Agreement" means the 364-Day Revolving Credit Agreement
(Facility A Agreement) dated the date hereof in the amount of (pound)550,000,000
among the Borrower and Barclays Bank PLC, ABN AMRO Bank N.V., Westdeutsche
Landesbank Girozentrale, Sumitomo Mitsui Banking Corporation and The Bank of
Tokyo-Mitsubishi, Ltd., New York Branch.
11
"Facility Fee" has the meaning assigned to such term in Section 2.11(a).
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next Basis Point) of the rates on
overnight Federal funds transactions with members of the United States Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next Basis Point) of the quotations for
such day for such transactions received by the Documentation Manager from three
Federal funds brokers of recognized standing selected by it.
"Film Financing" means, without duplication, monetary obligations arising
out of transactions in which so-called tax-based financing groups or other
third-party investors provide financing for the acquisition, production or
distribution of motion pictures, television programs, sound recordings or books
or rights with respect thereto in exchange, in part, for certain tax or other
benefits which are derived from such motion pictures, television programs, sound
recordings, books or rights; provided that no such monetary obligations shall
have, directly or indirectly, recourse (including by way of setoff) to the
Borrower or any Restricted Subsidiary or any of its assets other than to the
profits or distribution rights related to such motion pictures, television
programs, sound recordings, books or rights and other than to a Subsidiary of
TWE or TBS substantially all of the assets of which consist of the motion
pictures, television programs, sound recordings, books or rights which are the
subject of such transaction and related cash and Cash Equivalents.
"Financial Officer" means the chief financial officer, principal accounting
officer, treasurer or controller of the Borrower.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
"Franchise" means, with respect to any Person, a franchise, license,
authorization or right to construct, own, operate, manage, promote, extend or
otherwise utilize any cable television distribution system operated or to be
operated by such Person or any of its Subsidiaries granted by any Governmental
Authority, but shall not include any such franchise, license, authorization or
right that is incidentally required for the purpose of installing, constructing
or extending a cable television system.
"GAAP" means generally accepted accounting principles in the United States.
"Governmental Authority" means the government of the United States, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
12
"Guarantee Obligations" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness of the payment
thereof, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or (d) as an account party in respect
of any letter of credit or letter of guaranty issued to support such
Indebtedness; provided, that the term Guarantee Obligations shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantees" means, collectively, the Guarantees to be executed and
delivered by each of the Guarantors, substantially in the form of Exhibit B.
"Guarantors" means (a) America Online, (b) Time Warner, (c) TBS, (d) Time
Warner Companies, Inc., a Delaware corporation, (e) TWI Cable Inc., a Delaware
corporation, and (f) any other Person that becomes a party to the Guarantee
after the Effective Date.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HSBC" means HSBC Bank USA.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person (but not including
synthetic or operating leases), (e) all obligations of such Person in respect of
the deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business and payment obligations of
such Person pursuant to agreements entered into in the ordinary course of
business, which payment obligations are contingent on another Person's
satisfactory provision of services or products), (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien (other than a Copyright Lien
or Liens on interests or Investments in Unrestricted Subsidiaries) on property
owned or acquired by such Person, whether or not the Indebtedness secured
thereby has been assumed (but only to the extent of the lesser of the fair
market value of the property subject to such Lien and the amount of such
Indebtedness), (g) all Guarantee Obligations of such Person with respect to
Indebtedness of others (except to the extent that such Guarantee Obligation
guarantees Indebtedness of a Restricted Subsidiary), (h) all Capital Lease
Obligations of such Person, (i) all obligations,
13
contingent or otherwise, of such Person as an account party in respect of
letters of credit (but only to the extent of all drafts drawn thereunder) and
(j) all obligations, contingent or otherwise, of such Person in respect of
bankers' acceptances. Notwithstanding the foregoing, Indebtedness shall not
include (i) any obligation of such Person to guarantee performance of, or enter
into indemnification agreements with respect to, obligations, entered into in
the ordinary course of business, under any and all Franchises, leases,
performance bonds, franchise bonds and obligations to reimburse drawings under
letters of credit issued in lieu of performance or franchise bonds, (ii)
completion bonds or guarantees or indemnities of a similar nature issued in the
ordinary course of business in connection with the production of motion pictures
and video and television programming or (iii) obligations to make Tax
Distributions. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other contractual relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Election Request" means a request by the Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any Base Rate Loan (other
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing with an Interest Period of more than three
months' duration, each day that is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such Interest
Period, and (c) with respect to any Swingline Loan, the day that such Loan is
required to be repaid.
"Interest Period" means with respect to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is (a) one, two, three or six
months (or, with the consent of each Lender, a shorter period) thereafter, as
the Borrower may elect and (b) one month thereafter, if the Borrower has made no
election, provided, that (i) if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurocurrency Borrowing only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day and
(ii) any Interest Period pertaining to a Eurocurrency Borrowing that commences
on the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
"Investment" by any Person means any direct or indirect (a) loan, advance
or other extension of credit or contribution to any other Person (by means of
transfer of cash or other property to others, payments for property or services
for the account or use of others,
14
mergers or otherwise), (b) purchase or acquisition of Capital Stock, bonds,
notes, debentures or other securities (including any option, warrant or other
right to acquire any of the foregoing) or evidences of Indebtedness issued by
any other Person (whether by merger, consolidation, amalgamation or otherwise
and whether or not purchased directly from the issuer of such securities or
evidences of Indebtedness), (c) purchase or acquisition (in one transaction or a
series of transactions) of any assets of any other Person constituting a
business unit and (d) all other items that would be classified as investments on
a balance sheet of such Person prepared in accordance with GAAP. Investments
shall exclude extension of trade credit and advances to customers and suppliers
to the extent made in the ordinary course of business and in accordance with
customary industry practice.
"Issuing Bank" means any Lender or Affiliate of any Lender selected by the
Borrower that agrees to be an Issuing Bank hereunder and any other bank
reasonably acceptable to the Required Lenders and designated as an Issuing Bank
by the Borrower, in its capacity as an issuer of Letters of Credit hereunder.
Any Issuing Bank may, in its discretion, arrange for one or more Letters of
Credit to be issued by Affiliates of the Issuing Bank, in which case the term
"Issuing Bank" shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate. Any Issuing Bank shall become a party to this
Agreement by execution and delivery of a supplemental signature page to this
Agreement. Initially, HSBC shall be the Issuing Bank.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time.
"L/C Sublimit" means (pound)25,000,000.
"Lender Affiliate" means, (a) with respect to any Lender, (i) an Affiliate
of such Lender or (ii) any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Lender or an Affiliate of such
Lender and (b) with respect to any Lender that is a fund which invests in bank
loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"Lenders" means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
15
"LIBO Rate" means, (a) with respect to any Eurocurrency Borrowing
denominated in Pounds, Dollars or Yen for any Interest Period, the rate
appearing on Page 3740 or Page 3750, as the case may be, of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Documentation Manager from time to time for purposes of providing quotations of
interest rates applicable to Pound, Dollar or Yen deposits (as applicable) in
the London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period (or, in the case
of Pounds, on the first day of such Interest Period), as the rate for dollar
deposits with a maturity comparable to such Interest Period and (b) with respect
to any Eurocurrency Borrowing denominated in Euro for any Interest Period, the
rate appearing on Page 248 of the Telerate Service (it being understood that
this rate is the Euro interbank offered rate (known as the "EURIBOR Rate")
sponsored by the Banking Federation of the European Union (known as the "FBE")
and the Financial Markets Association (known as the "ACI")) at approximately
10:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for deposits in Euro with a maturity comparable to
such Interest Period. In the event that such rate is not available at such time
for any reason, then the "LIBO Rate" with respect to such Eurocurrency Borrowing
for such Interest Period shall be the rate per annum (rounded upwards, if
necessary, to the next Basis Point) equal to the arithmetic average of the rates
at which deposits in Pounds or the applicable Optional Currency approximately
equal in principal amount to the Pound Sterling Equivalent of (pound)5,000,000
and for a maturity comparable to such Interest Period are offered with respect
to any Eurocurrency Borrowing to the principal London offices of the Reference
Banks (or, if any Reference Bank does not at the time maintain a London office,
the principal London office of any Affiliate of such Reference Lender) in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period (or, in the case of Pounds, on the first day of such Interest
Period) and; provided, however, that, if only two Reference Banks notify the
Documentation Manager of the rates offered to such Reference Banks (or any
Affiliates of such Reference Lenders) as aforesaid, the LIBO Rate with respect
to such Eurocurrency Borrowing shall be equal to the arithmetic average of the
rates so offered to such Reference Banks (or any such Affiliates).
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in
(including sales of accounts), on or of such asset, (b) the interest of a vendor
or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing, but excluding any operating leases)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Local Time" means, for payments and disbursements (a) in respect of
Dollars, New York time, (b) in respect of Euros or Pounds, London time and (c)
in respect Yen, Tokyo time.
16
"Mandatory Cost" means, with respect to any Lender, the cost imputed to
such Lender of compliance with the requirements of the Bank of England or the
Financial Services Authority during the relevant Interest Period, determined in
accordance with Schedule 1.01.
"Material Adverse Effect" means a material adverse effect on (a) the
financial condition, business, results of operations, properties or liabilities
of the Borrower and the Subsidiaries taken as a whole, (b) the ability of any
Credit Party to perform any of its material obligations to the Lenders under any
Credit Document to which it is or will be a party or (c) the rights of or
benefits available to the Lenders under any Credit Document.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), of any one or more of the Borrower and its Restricted
Subsidiaries or any Material Subsidiary of the Borrower in an aggregate
principal amount exceeding $100,000,000.
"Material Subsidiary" of any Person means, at any date, each Subsidiary of
such Person which, either alone or together with the Subsidiaries of such
Subsidiary, meets any of the following conditions:
(i) as of the last day of such Person's most recently ended fiscal
quarter for which financial statements have been filed with the SEC the
investments of such Person and its Subsidiaries in, or their proportionate
share (based on their equity interests) of the book value of the total
assets (after intercompany eliminations) of, the Subsidiary in question
exceeds 10% of the book value of the total assets of such Person and its
consolidated Subsidiaries;
(ii) for the full four consecutive quarter period ended on the last
day of such Person's most recently ended fiscal quarter for which financial
statements have been filed with the SEC, the equity of such Person and its
Subsidiaries in the revenues from continuing operations of the Subsidiary
in question exceeds 10% of the revenues from continuing operations of such
Person and its consolidated Subsidiaries; or
(iii) for the full four consecutive quarter period ended on the last
day of such Person's most recently ended fiscal quarter for which financial
statements have been filed with the SEC, the equity of such Person and its
Subsidiaries in the Consolidated EBITDA of the Subsidiary in question
exceeds 10% of the Consolidated EBITDA of such Person.
"Maturity Date" means the Commitment Termination Date, or if the Borrower
has delivered a Term Out Notice, the second anniversary of the Commitment
Termination Date.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"National Currency Unit" means the unit of currency (other than the Euro)
of a Participating Member State.
"Note" means any promissory note evidencing Loans.
17
"Obligations" has the meaning assigned to such term in the Guarantees.
"Officer's Certificate" means a certificate executed by the Chief Financial
Officer, the Treasurer or the Controller of the Borrower or such other officer
of the Borrower reasonably acceptable to the Documentation Manager and
designated as such in writing to the Documentation Manager by the Borrower.
"Optional Currency" means, at any time, Dollars, Euros and Yen, so long as
such currency is freely traded and convertible into Pounds in the London market
and as to which a Pound Sterling Equivalent can be calculated.
"Optional Currency Sublimit" means(pound)250,000,000.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Participating Member State" means a member of the European Communities
that adopts or has adopted the Euro as its currency in accordance with EMU
Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pounds" or "(pound)" or "Pound Sterling" refer to lawful money of the
United Kingdom.
"Pound Sterling Equivalent" means, with respect to an amount denominated in
any Optional Currency, the equivalent in Pound Sterling of such amount
determined at the Exchange Rate determined by the Documentation Manager on the
date of determination of such equivalent. In making any determination of the
Pound Sterling Equivalent for purposes of calculating the amount of Loans to be
borrowed from the respective Lenders on any date, the Documentation Manager
shall use the relevant Exchange Rate in effect on the date on which the Borrower
delivers a Borrowing Request (which, in accordance with Section 2.03, may be
telephonic) for such Loans pursuant to the provisions of this Agreement. As
appropriate, amounts specified herein as amounts in Pounds shall be or include
any relevant Pound Sterling Equivalent amount.
18
"Pound Sterling Overnight Rate" means, for any day, a rate per annum equal
to the rate on overnight Pound Sterling deposits in the London interbank market
as such rates are quoted on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Documentation
Manager from time to time for purposes of providing quotations of interest rates
applicable to Pound Sterling deposits in the London interbank market), plus the
Mandatory Cost, plus the Applicable Rate.
"Pound Sterling Quoted Rate" means, for any day for any Swingline Loan, a
rate per annum quoted by the Swingline Lender to the Borrower in response to a
Borrowing Request in respect of such Swingline Loan as its overnight offer rate
in effect for such Swingline Loan at its principal office in London, plus the
Applicable Rate.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by the Documentation Manager as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Rating" has the meaning assigned to such term in the definition of
"Applicable Rate."
"Reference Banks" means Barclays Bank PLC, HSBC Bank USA and The Royal Bank
of Scotland PLC and their respective Affiliates.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.
"Responsible Officer" of the Borrower means any of the Chief Executive
Officer, Chief Legal Officer, Chief Financial Officer, Treasurer or Controller
(or any equivalent of the foregoing officers) of the Borrower.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any shares of any class of
capital stock of the Borrower, or any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any such shares of capital stock of the Borrower or any option, warrant or
other right to acquire any such shares of capital stock of the Borrower.
"Restricted Subsidiaries" of the Borrower means, as of any date, all
Subsidiaries of the Borrower that have not been designated as Unrestricted
Subsidiaries by the Borrower
19
pursuant to Section 6.08 or have been so designated as Unrestricted Subsidiaries
by the Borrower but prior to such date have been (or have been deemed to be)
re-designated by the Borrower as Restricted Subsidiaries pursuant to Section
6.08.
"Revolving Borrowing" means a Borrowing of Revolving Loans.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans,
its LC Exposure and Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's Rating Services.
"SEC" means the Securities and Exchange Commission, any successor thereto
and any analogous Governmental Authority.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentage (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Documentation Manager is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentage shall include those imposed
pursuant to such Regulation D. Eurocurrency Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Stock Option Loans" means (a) borrowings under that certain Credit
Agreement dated as of March 13, 1998, as amended, among Time Warner, The Chase
Manhattan Bank, as administrative agent thereunder, and the lenders party
thereto; provided the lenders thereunder shall not have the benefit of any Lien
other than on the Capital Stock of the Borrower and proceeds therefrom or (b)
borrowings under substantially similar facilities.
"Subsequent Participant" means any member state that adopts the Euro as its
lawful currency after the date hereof.
"Subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50% of
the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held. Unless otherwise qualified, all references to a
"Subsidiary" or "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
20
"Swingline Exposure" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lender" means HSBC, in its capacity as lender of Swingline Loans
hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Tax Distribution" means, with respect to any period, distributions made to
any Person by a Subsidiary of such Person on or with respect to income and other
taxes, which distributions are not in excess of the tax liabilities that would
have been payable by such Subsidiary on a standalone basis, and which are
calculated in accordance with, and made no earlier than as required by, the
terms of the applicable organizational document which requires such
distribution.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"TBS" means Xxxxxx Broadcasting System, Inc., a Georgia corporation.
"Term Out Notice" has the meaning assigned to such term in Section 2.09(e).
"Time Warner" means Time Warner Inc., a Delaware corporation.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of Loans and the use of the proceeds
thereof.
"Treaty" means the Treaty establishing the European Economic Community,
being the Treaty of Rome of March 25, 1957 (as amended by the Single Xxxxxxxx
Xxx 0000, the Maastricht Treaty (which was signed at Maastricht on February 7,
1992 and came into force on November 1, 1993), the Amsterdam Treaty (which was
signed at Amsterdam on October 2, 1997 and came into force on May 1, 1999) and
the Nice Treaty (which was signed on February 26, 2001), each as amended from
time to time and as referred to in legislative measures of the European Union
for the introduction of, changeover to or operating of the Euro in one or more
member states.
"TWE" means Time Warner Entertainment Company, L.P., a Delaware limited
partnership.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate, the Alternate Base Rate, the
Pound Sterling Overnight Rate, the Pound Sterling Quoted Rate, the Euro
Overnight Rate or the Yen Overnight Rate.
"United States" means the United States of America.
21
"U.S. Person" means a person who is a citizen or resident of the United
States and any corporation or other entity created or organized in or under the
laws of the United States.
"Unrestricted Subsidiary" has the meaning assigned to such term in Section
6.08.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
"Yen" and "(Y)" shall mean lawful money of Japan.
"Yen Overnight Rate" means, for any day, the sum of (a) the rate that
represents the cost of overnight funds for Yen in the Tokyo interbank market to
the Documentation Manager for such day plus (b) the Applicable Rate.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type (e.g., a
"Eurocurrency Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurocurrency
Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words, "include," "includes" and "including"
shall be deemed to be followed by the phrase "without limitation." The word
"will" shall be construed to have the same meaning and effect as the word
"shall." Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein," "hereof" and
"hereunder," and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, (a) if the Borrower notifies the Documentation Manager that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Documentation Manager notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such
22
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith and (b) Consolidated
Net Worth and Consolidated Total Assets shall be calculated at all times in
accordance with GAAP as in effect on the Effective Date solely as it relates to
the impairment of goodwill and intangibles.
ARTICLE II
The Credits
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SECTION 2.01. Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrower in Pounds or
any Optional Currency from time to time during the Availability Period so long
as, after giving effect thereto, (A) such Lender's Revolving Credit Exposure
will not exceed such Lender's Commitment and (B) the sum of the total Revolving
Credit Exposures will not exceed the total Commitments and (C) the total
Revolving Credit Exposures denominated in the Optional Currencies will not
exceed the Optional Currency Sublimit. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Revolving Loans. The Revolving Loans made in Pounds may from time
to time be Eurocurrency Loans or Pound Sterling Overnight Rate Loans, the
Revolving Loans made in Dollars may from time to time be Eurocurrency Loans or
Alternate Base Rate Loans, the Revolving Loans made in Euro may from time to
time be Eurocurrency Loans or Euro Overnight Rate Loans, and the Revolving Loans
made in Yen may from time to time be Eurocurrency Loans or Yen Overnight Rate
Loans, in each case as determined by the Borrower and notified to the
Documentation Manager in accordance with Sections 2.03 and 2.07.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made
as part of a Borrowing consisting of Revolving Loans made by the Lenders ratably
in accordance with their respective Commitments. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing shall be comprised
entirely of Base Rate Loans or Eurocurrency Loans as the Borrower may request in
accordance herewith. Each Swingline Loan shall be either a Pound Sterling
Overnight Rate Loan or a Pound Sterling Quoted Rate Loan. Each Lender at its
option may make any Eurocurrency Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan; provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such Loan
in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurocurrency
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of 1,000,000 units of the relevant currency and not less than
an amount which is Pound Sterling Equivalent to (pound)5,000,000. At the time
that any Base Rate Borrowing is made, such
23
Borrowing shall be in an aggregate amount that is an integral multiple of
1,000,000 units and not less than an amount which is Pound Sterling Equivalent
to (pound)5,000,000; provided that any Base Rate Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the total
Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e). Each Swingline Loan shall be in
an amount that is an integral multiple of (pound)1,000,000 and not less than
(pound)5,000,000. Borrowings of more than one Type and Class may be outstanding
at the same time; provided that there shall not at any time be more than a total
of 20 Eurocurrency Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request at any time a Borrowing hereunder without
requesting a ratable borrowing from the lenders under the Facility A Agreement
in accordance with the terms thereof.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Documentation Manager of such request
by telephone in accordance with Schedule 2.03(A). Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Documentation Manager of a written Borrowing Request in a form
approved by the Documentation Manager and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(a) the aggregate amount and Currency of the requested Borrowing, and, in
the case of an Optional Currency Borrowing, the Pound Sterling Equivalent of the
requested Borrowing, as calculated using the Exchange Rate on the date of the
request;
(b) the date of such Borrowing, which shall be a Business Day;
(c) whether such Borrowing is to be an ABR Borrowing, Pound Sterling
Overnight Rate Borrowing or a Eurocurrency Borrowing;
(d) in the case of a Eurocurrency Borrowing, the initial Interest Period to
be applicable thereto, which shall be a period contemplated by the definition of
the term "Interest Period"; and
(e) the location and number of the Borrower's account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.06.
provided, that no such notice shall alter the information required by subsection
(e) of this Section 2.03 from that set forth on Schedule 2.03(B) unless such
notice shall be written.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be a Pound Sterling Overnight Rate
Borrowing. If no Interest Period is specified with respect to any requested
Eurocurrency Revolving Borrowing, then the Borrower
24
shall be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Documentation Manager shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding
(pound)50,000,000 or (ii) the sum of the total Revolving Credit Exposures
exceeding the total Commitments; provided that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Swingline Loans. Swingline
Loans shall only be made in Pounds.
(b) To request a Swingline Loan, the Borrower shall notify the
Documentation Manager of such request by telephone (confirmed by telecopy) in
accordance with Schedule 2.03(A). Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day), the requested
interest rate and amount of the requested Swingline Loan. The Documentation
Manager will promptly advise the Swingline Lender of any such notice received
from the Borrower. The Swingline Lender shall make each Swingline Loan available
to the Borrower by means of a credit to the general deposit account (as more
specifically set forth on Schedule 2.03(B), and changed from time to time only
by a written notice) of the Borrower with the Swingline Lender by 3:00 p.m.,
London time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the Documentation
Manager not later than 11:00 am, London time, on any Business Day require the
Lenders to acquire participations on such Business Day in all or a portion of
the Swingline Loans outstanding. Such notice shall specify the aggregate amount
of Swingline Loans in which Lenders will participate. Promptly upon receipt of
such notice, the Documentation Manager will give notice thereof to each Lender,
specifying in such notice such Lender's Applicable Percentage of such Swingline
Loan or Loans. Each Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Documentation Manager, for
the account of the Swingline Lender, such Lender's Applicable Percentage of such
Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation
to acquire participations in Swingline Loans pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each Lender
shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Documentation
Manager shall promptly pay to the Swingline Lender the amounts so received by it
from the Lenders. The Documentation Manager shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Documentation Manager and
25
not to the Swingline Lender. Any amounts received by the Swingline Lender from
the Borrower (or other party on behalf of the Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Documentation
Manager; any such amounts received by the Documentation Manager shall be
promptly remitted by the Documentation Manager to the Lenders that shall have
made their payments pursuant to this paragraph and to the Swingline Lender, as
their interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof. Notwithstanding the foregoing, a Lender shall not have any
obligation to acquire a participation in a Swingline Loan pursuant to this
paragraph if an Event of Default shall have occurred and be continuing at the
time such Swingline Loan was made and such Lender shall have notified the
Swingline Lender in writing, at least one Business Day prior to the time such
Swingline Loan was made, that such Event of Default has occurred and that such
Lender will not acquire participations in Swingline Loans made while such Event
of Default is continuing.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request at any time a Swingline Loan hereunder without
requesting a ratable borrowing from the swingline lender under the Facility A
Agreement in accordance with the terms thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of
Credit for its own account, in a form reasonably acceptable to the Borrower and
the Issuing Bank, at any time and from time to time during the Availability
Period; provided that the Borrower shall not be entitled to request at any time
the issuance of Letters of Credit hereunder without requesting on a pro rata
basis the issuance of letters of credit under the Facility A Agreement in
accordance with the terms thereof. Each Letter of Credit shall be issued in
Pounds or in an Optional Currency. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Borrower to,
or entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the Issuing Bank) to the Issuing Bank (reasonably in
advance of the requested date of issuance, amendment, renewal or extension and
no later than 12:00 noon Local Time one Business Day prior to such date) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount and Currency of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Bank, the Borrower also shall submit a
letter of credit application on the Issuing Bank's standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended on the requested date only if (and upon issuance,
amendment,
26
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed the L/C Sublimit, (ii)
the sum of the total Revolving Credit Exposures shall not exceed the total
Commitments and (iii) the requirements of paragraph (c) of this Section shall be
satisfied.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the Maturity Date
unless such Letter of Credit is cash collateralized in an amount equal to its
face amount prior to 12:00 noon, Local Time on the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby
grants to each Lender, and each Lender hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Issuing Bank, such Lender's
Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the Borrower
for any reason. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement
in the same Currency as such LC Disbursement by paying to the Issuing Bank an
amount equal to such LC Disbursement not later than 12:00 noon, Local Time, on
the Business Day immediately following the day that the Borrower receives notice
of such LC Disbursement; provided that, if the Borrower fails to reimburse the
Issuing Bank on such date, the Borrower shall be deemed to have requested a Base
Rate Borrowing in the principal amount and Currency of the LC Disbursement,
without regard to the minimum amounts and multiples set forth in Section 2.02,
but subject to the unutilized portion of the Commitments and the Optional
Currency Sublimit. If the Borrower elects to finance amounts due under any
Letter of Credit in such a manner, the Borrower's obligation to pay an amount
equal to the LC Disbursement to the Issuing Bank shall be discharged and
replaced by the resulting Base Rate Borrowing, and the Issuing Bank shall notify
the Documentation Manager, who shall notify each Lender of the applicable LC
Disbursement and corresponding Base Rate Borrowing and such Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each Lender shall
pay to the Issuing Bank its Applicable Percentage of such Base Rate Borrowing,
in the same manner as provided in Section 2.06 with respect to Loans made by
such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Lenders). Promptly following receipt of any payment from the
Borrower pursuant to this paragraph such payment shall be distributed to the
Issuing Bank or, to
27
the extent that Lenders have made payments pursuant to this paragraph to fund
any Base Rate Loan made to reimburse the Issuing Bank, then to such Lenders and
the Issuing Bank as their interests may appear.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not strictly
comply with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower's obligations
hereunder. Neither the Documentation Manager, nor any of the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided that the foregoing shall
not be construed to excuse the Issuing Bank from liability to the Borrower to
the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank's
gross negligence or wilful misconduct in connection with any of the foregoing
circumstances. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Lenders and the Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Borrower shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Borrower
28
reimburses such LC Disbursement, at the rate per annum then applicable to Base
Rate Loans in the applicable Currency; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.12(g) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (e)
of this Section to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at
any time by written agreement among the Borrower, the replaced Issuing Bank and
the successor Issuing Bank and, if required, with the consent of the Required
Lenders. The Borrower shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.11(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, Local Time for the applicable
Currency, to the account of the Documentation Manager most recently designated
by it for such purpose by notice to the Lenders; provided that Swingline Loans
shall be made as provided in Section 2.04. The Documentation Manager will make
such Loans available to the Borrower by promptly crediting the amounts so
received, in like funds, to an account of the Borrower specified on Schedule
2.03(B) or designated by the Borrower in the applicable Borrowing Request.
(b) Unless the Documentation Manager shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Documentation Manager such Lender's share of such
Borrowing, the Documentation Manager may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Documentation Manager, then the
applicable Lender and the Borrower severally agree to pay to the Documentation
Manager forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Documentation Manager, at
(i) in the case of such Lender, (A) in the case of Borrowings denominated in
Pounds Sterling, the Pound Sterling Overnight Rate, and (B) in the case of
Borrowings denominated in any Optional Currency, the interest rate reasonably
determined by the Documentation Manager as the rate applicable to overnight
settlements between banks for the amount advanced by the Documentation Manager
on behalf of such Lender or (ii) in the case
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of the Borrower, the interest rate that would otherwise apply to such Borrowing.
If such Lender pays such amount to the Documentation Manager, then such amount
shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency Revolving Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the Borrower may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall notify
the Documentation Manager of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election (as more specifically set forth in
Schedule 2.03(A)). Each such telephonic Interest Election Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Documentation Manager of a written Interest Election Request in a form approved
by the Documentation Manager and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) in the case of any Borrowing denominated in Dollars, whether the
resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;
(iv) in the case of any Borrowing denominated in Pounds, whether the
resulting Borrowing is to be a Pound Sterling Overnight Rate Borrowing or a
Eurocurrency Borrowing;
(v) in the case of any Borrowing denominated in Euro, whether the
resulting Borrowing is to be a Euro Overnight Rate Borrowing or a
Eurocurrency Borrowing;
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(vi) in the case of any Borrowing denominated in Yen, whether the
resulting Borrowing is to be a Yen Overnight Rate Borrowing or a
Eurocurrency Borrowing
(vii) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Documentation Manager shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurocurrency Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to a Eurocurrency Revolving Borrowing having a one month Interest
Period. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Documentation Manager, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing (i) no outstanding Revolving Borrowing may be converted to
or continued as a Eurocurrency Borrowing and (ii) unless repaid, each
Eurocurrency Revolving Borrowing denominated in Dollars shall be converted to an
ABR Borrowing at the end of the Interest Period applicable thereto and any
Eurocurrency Revolving Borrowing denominated in any Optional Currency shall be
automatically continued as Eurocurrency Loans on the last day of such then
expiring Interest Period with a new Interest Period of one month.
SECTION 2.08. Termination and Reduction of Commitments. Unless previously
terminated, the Commitments shall terminate on the Commitment Termination Date.
(a) The Borrower may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) each reduction of the Commitments shall be in
an amount that is an integral multiple of (pound)1,000,000 and not less than
(pound)10,000,000, (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, the sum of the Revolving Credit Exposures would
exceed the total Commitments and (iii) if the Borrower reduces the Commitments
hereunder, the Borrower shall reduce the Commitments under the Facility A
Agreement on a pro rata basis, based on the Commitments outstanding immediately
prior to giving effect to any such reduction.
(b) The Borrower shall notify the Documentation Manager of any election to
terminate or reduce the Commitments under paragraph (a) of this Section at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Documentation Manager shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Documentation
Manager on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
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SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Documentation Manager for the account
of each Lender the then unpaid principal amount of each Revolving Loan on the
Maturity Date and (ii) to the Swingline Lender the then unpaid principal amount
of each Swingline Loan on the earlier of the Maturity Date and the first date
after such Swingline Loan is made that is the 15th or last day of a calendar
month and is at least two Business Days after such Swingline Loan is made;
provided that on each date that a Revolving Borrowing is made, the Borrower
shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Documentation Manager shall maintain accounts in which it shall
record (i) the amount and Currency of each Loan made hereunder, the Class and
Type thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Documentation Manager hereunder for the account of the Lenders and each
Lender's share thereof.
(d) Any Lender may request that Loans made by it be evidenced by a Note. In
such event, the Borrower shall prepare, execute and deliver to such Lender a
Note payable to the order of such Lender (or, if requested by such Lender, to
such Lender and its registered assigns) and in a form approved by the
Documentation Manager. Thereafter, the Loans evidenced by such Note and interest
thereon shall at all times (including after assignment pursuant to Section 9.04)
be represented by one or more Notes in such form payable to the order of the
payee named therein (or, if such promissory note is a registered note, to such
payee and its registered assigns).
(e) The Borrower may elect to extend the maturity of all Revolving Loans
outstanding on the Commitment Termination Date to the date which is the second
anniversary of the Commitment Termination by giving written notice (the "Term
Out Notice") of such election to the Administration Agent at least 15 days prior
to the Commitment Termination Date. If the Borrower delivers any Term Out Notice
with respect to this Agreement, it shall also deliver a corresponding Term Out
Notice with respect to the Facility A Agreement.
SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have the right at
any time and from time to time to prepay any Borrowing in whole or in part,
subject to prior notice in accordance with paragraph (b) of this Section. Any
prepayment by the Borrower
32
hereunder shall be made ratably with a prepayment of the loans outstanding under
the Facility A Agreement, based on the amount of the Loans outstanding hereunder
and the loans outstanding under the Facility A Agreement immediately prior to
such prepayment.
(b) The Borrower shall notify the Documentation Manager (and, in the case
of prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed
by telecopy) of any prepayment hereunder in accordance with Schedule 2.03(A).
Each such notice shall be irrevocable and shall specify the prepayment date and
the principal amount of each Borrowing or portion thereof to be prepaid;
provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by Section
2.08, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.08. Promptly following
receipt of any such notice relating to a Revolving Borrowing, the Documentation
Manager shall advise the Lenders of the contents thereof. Each partial
prepayment of any Revolving Borrowing shall be in an amount that would be
permitted in the case of an advance of a Revolving Borrowing of the same Type as
provided in Section 2.02. Each prepayment of a Revolving Borrowing hereunder
shall be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.12.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the Documentation
Manager for the account of each Lender a facility fee (a "Facility Fee") which
shall accrue at the Applicable Rate on the daily amount of the Commitment of
such Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the date on which such Commitment terminates;
provided that, if such Lender continues to have any Revolving Credit Exposure
after its Commitment terminates, then such Facility Fee shall continue to accrue
on the daily amount of such Lender's Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the date
on which such Lender ceases to have any Revolving Credit Exposure. Accrued
Facility Fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the Maturity Date (or such earlier
date after the Commitment Termination Date on which the Loans are repaid in
full), commencing on the first such date to occur after the date hereof. All
Facility Fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The Borrower agrees to pay (i) to each Lender a letter of credit fee (a
"Letter of Credit Fee") with respect to its participations in Letters of Credit,
which shall accrue at the same Applicable Rate as interest on Eurocurrency
Revolving Loans on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date on which such Lender's Commitment terminates and the date on
which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a
fronting fee (a "Fronting Fee"), equal to 0.125% per annum of the face amount of
each Letter of Credit (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC Exposure. Letter of
Credit Fees and Fronting Fees accrued through and including the last day of
March, June, September and December of each year shall be payable on the third
Business Day following such last day,
33
commencing on the first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Commitments
terminate and any such fees accruing after the date on which the Commitments
terminate shall be payable on demand. All Letter of Credit Fees and Fronting
Fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day).
(c) The Borrower agrees to pay to the Documentation Manager, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Documentation Manager.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Documentation Manager for distribution, in
the case of Facility Fees and Letter of Credit Fees, to the Lenders. Fees paid
shall not be refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing shall
bear interest at a rate per annum equal to the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear interest at
a rate per annum equal to, in the case of a Eurocurrency Revolving Loan, the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.
(c) The Loans comprising each Pound Sterling Overnight Rate Borrowing shall
bear interest at a rate per annum equal to the Pound Sterling Overnight Rate.
(d) The Loans comprising each Euro Overnight Rate Borrowing shall bear
interest at a rate per annum equal to the Euro Overnight Rate.
(e) The Loans comprising each Yen Overnight Rate Borrowing shall bear
interest at a rate per annum equal to the Yen Overnight Rate.
(f) The Loans comprising each Swingline Borrowing shall bear interest at a
rate per annum equal to the Pound Sterling Overnight Rate or the Pound Sterling
Quoted Rate, as applicable.
(g) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by the Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to Loans in the Base Rate of the
relevant Currency as provided above.
(h) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
to paragraph (g) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (iii) in the event of any conversion of any
Eurocurrency
34
Revolving Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion
and (iv) all accrued interest shall be payable upon termination of the
Commitments.
(i) All interest hereunder shall be computed on the basis of a year of 360
days, except that (i) interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and
(ii) with respect to Loans denominated in Pounds, the interest rate thereon
shall be calculated on the basis of a 365-day year, and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate,
LIBO Rate and Pound Sterling Overnight Rate shall be determined by the
Documentation Manager, and such determination shall be conclusive absent
manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurocurrency Borrowing:
(a) the Documentation Manager determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for the relevant Currency for
such Interest Period; or
(b) the Documentation Manager is advised by the Required Lenders that
the Adjusted LIBO Rate for the relevant Currency for such Interest Period
will not adequately and fairly reflect the cost to such Lenders of making
or maintaining their Loans included in such Borrowing for such Interest
Period;
then the Documentation Manager shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Documentation Manager notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurocurrency Borrowing shall be
ineffective, and (ii) if any Borrowing Request requests a Eurocurrency Revolving
Borrowing, such Borrowing, shall be made as a Base Rate Loan in the applicable
Currency, and if the circumstances giving rise to such notice affect only one
Type of Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market or the Tokyo interbank market any other condition affecting this
Agreement or Eurocurrency Loans made by such Lender or any Letter of Credit
or participation therein;
35
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs actually incurred or reduction
actually suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participation in Letters of Credit held
by such Lender, or the Letters of Credit issued by the Issuing Bank to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies and the policies
of such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction actually suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than six months prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the six-month period referred to above shall be extended to include the period
of retroactive effect thereof.
Notwithstanding any other provision of this Section 2.14, no Lender nor
Issuing Bank shall demand compensation for any increased costs or reduction
referred to above if it shall not be the general policy or practice of such
Lender or the Issuing Bank to demand such compensation in similar circumstances
under comparable provisions of other credit agreements, if any (it being
understood that this sentence shall not in any way limit the discretion of any
Lender or the Issuing Bank to waive the right to demand such compensation in any
given case).
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SECTION 2.15. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurocurrency Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurocurrency Loan other than on the last day of the
Interest Period applicable thereto, (c) the failure to borrow, convert, continue
or prepay any Revolving Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice is permitted to be revocable
under Section 2.10(b) and is revoked in accordance herewith), or (d) the
assignment of any Eurocurrency Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurocurrency Loan, the loss to any Lender attributable to any such event shall
be deemed to include an amount determined by such Lender to be equal to the
excess, if any, of (i) the amount of interest that such Lender would pay for a
deposit equal to the principal amount of such Loan for the period from the date
of such payment, conversion, failure or assignment to the last day of the then
current Interest Period for such Loan (or, in the case of a failure to borrow,
convert or continue, the duration of the Interest Period that would have
resulted from such borrowing, conversion or continuation) if the interest rate
payable on such deposit were equal to the Adjusted LIBO Rate for such Interest
Period, over (ii) the amount of interest that such Lender would earn on such
principal amount for such period if such Lender were to invest such principal
amount for such period at the interest rate that would be bid by such Lender (or
an affiliate of such Lender) for dollar deposits from other banks in the
Eurocurrency market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Documentation Manager, Lender or
the Issuing Bank (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Documentation Manager, the Issuing
Bank and each Lender, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) paid by the Documentation Manager, the Issuing Bank or such Lender, as
the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
37
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender, or by the Documentation Manager
or the Issuing Bank on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) If a Lender or the Documentation Manager or the Issuing Bank receives a
refund in respect of any Indemnified Taxes or Other Taxes as to which it has
been indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.16, it shall within 30 days from
the date of such receipt pay over such refund to the Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section 2.16 with respect to the Indemnified Taxes or Other Taxes
giving rise to such refund, as determined by such Lender in its sole
discretion), net of all out-of-pocket expenses of such Lender or the
Documentation Manager or the Issuing Bank and without interest (other than
interest paid by the relevant taxation authority with respect to such refund);
provided that the Borrower, upon the request of such Lender or the Documentation
Manager or the Issuing Bank, agrees to repay the amount paid over to the
Borrower (plus penalties, interest or other charges) to such Lender or the
Documentation Manager or the Issuing Bank in the event such Lender or the
Documentation Manager or the Issuing Bank is required to repay such refund to
such taxation authority.
(e) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Documentation Manager the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Documentation Manager.
(f) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Documentation Manager), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate.
(g) Any Lender that is a U.S. Person shall deliver to the Borrower (with a
copy to the Documentation Manager) a statement signed by an authorized signatory
of the Lender that it is a U.S. Person and, if necessary to avoid United States
backup withholding, a duly completed and signed Internal Revenue Service Form
W-9 (or successor form) establishing that such Lender is organized under the
laws of the United States and is not subject to United States backup
withholding.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs.
(a) The Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursements of LC Disbursements, or
of amounts payable under Section 2.14, 2.15 or 2.16, or otherwise) prior to 1:00
p.m., Local Time, on the date when due, in immediately available funds, without
setoff or counterclaim. Any amounts received after such time on any date may, in
the discretion of the Documentation Manager, be deemed to have been received on
the next succeeding Business Day for purposes of calculating interest thereon.
All
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such payments shall be made to the Documentation Manager (i) in New York,
for payments in Dollars, (ii) in London, for payments in Euros or Pounds and
(iii) in Tokyo, for payments in Yen, in each case, at the offices for the
Documentation Manager set forth in Section 9.01, except payments to be made
directly to the Swingline Lender as expressly provided herein, and except that
payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly
to the Persons entitled thereto. The Documentation Manager shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient in like funds promptly following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder, whether such payments are made
in respect of principal, interest or fees, shall be made in the Currency in
which the applicable payment obligation is due; provided, that payments in
respect of Facility Fees pursuant Section 2.11 and any other payments (not in
respect of principal, interest or fees) or reimbursements shall be payable in
Pounds.
(b) If at any time insufficient funds are received by and available to the
Documentation Manager to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, to pay interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, to pay principal and unreimbursed LC
Disbursements, then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
(c) If any Lender shall, by exercising any right of setoff or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Revolving Loans, participations in LC Disbursements or Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans, participations in LC Disbursements and
Swingline Loans and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase
(for cash at face value) participations in the Revolving Loans, participations
in LC Disbursements and Swingline Loans of other Lenders to the extent necessary
so that the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, participations in LC Disbursements and
Swingline Loans; provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans, participations in LC Disbursements to any
assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of setoff and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.
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(d) Unless the Documentation Manager shall have received notice from the
Borrower prior to the date on which any payment is due to the Documentation
Manager for the account of the Lenders hereunder that the Borrower will not make
such payment, the Documentation Manager may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders, severally
agrees to repay to the Documentation Manager forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Documentation Manager, (i) if the relevant amount is denominated
in Pounds Sterling, at the Pound Sterling Overnight Rate (ii) if the relevant
amount is denominated in Dollars, at the Federal Funds Effective Rate and (iii)
if the relevant amount is denominated in any other Currency, at the interest
rate reasonably determined by the Documentation Manager as the rate applicable
for overnight settlements between banks for the amount paid by the Documentation
Manager on behalf of the Borrower.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.04(c), 2.06(b) or 2.17(d), then the Documentation Manager
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Documentation Manager for the account of
such Lender from or on behalf of any Credit Party or otherwise in respect of the
Obligations to satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.14, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.16, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.14 or 2.16, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender becomes a Defaulting Lender hereunder, then the Borrower may,
at its sole expense and effort, upon notice to such Lender and the Documentation
Manager, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all
its interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the
prior written consent of the Documentation Manager (and, if a Commitment is
being assigned, the Swingline Lender and the Issuing Bank), which consent shall
not unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans, participations in LC
Disbursements
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and Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments required
to be made pursuant to Section 2.16, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION 2.19. Prepayments Required Due to Currency Fluctuation. (a) Not
later than 1:00 p.m., New York City time, on the last Business Day of each
fiscal quarter of the Borrower (the "Calculation Time"), the Documentation
Manager shall determine the Pound Sterling Equivalent of the total Revolving
Credit Exposures outstanding as of such date.
(b) If at the Calculation Time, the Pound Sterling Equivalent of the total
Revolving Credit Exposures exceeds the total Commitments then in effect by 5% or
more, then within two Business Days thereafter, the Borrower shall prepay the
Swingline Loans or Revolving Loans or cash collateralize the outstanding Letters
of Credit in an aggregate principal amount at least equal to such excess.
Nothing set forth in this Section 2.19(b) shall be construed to require the
Documentation Manager to calculate compliance under this Section 2.19(b) other
than at the times set forth in Section 2.19(a).
SECTION 2.20. Adoption of the Euro. Each provision of this Agreement shall
be subject to such reasonable changes of construction as the Documentation
Manager may from time to time specify to be necessary or appropriate to reflect
the adoption of the Euro in any Participating Member State and any relevant
market conventions or practices relating to the Euro. Each obligation under this
Agreement of a party to this Agreement which has been denominated in the
National Currency Unit of a Subsequent Participant state shall be redenominated
into the Euro in accordance with EMU Legislation immediately upon such
Subsequent Participant becoming a Participating Member State (but otherwise in
accordance with EMU Legislation). If, in relation to the currency of any
Subsequent Participant, the basis of accrual of interest or fees expressed in
this Agreement with respect to such currency shall be inconsistent with any
convention or practice in the interbank market for the basis of accrual of
interest or fees in respect of the Euro, such convention or practice shall
replace such expressed basis effective as of and from the date on which such
Subsequent Participant becomes a Participating Member State; provided, that if
any Loan in the currency of such Subsequent Participant is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Loan, at the end of the then current Interest Period.
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lenders that:
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SECTION 3.01. Organization; Powers. Each Credit Party and each Restricted
Subsidiary is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are within
the Credit Parties' corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. Each Credit Document
(other than each Note) has been, and each Note when delivered hereunder will
have been, duly executed and delivered by the Credit Parties party thereto. Each
Credit Document (other than each Note) constitutes, and each Note when delivered
hereunder will be, a legal, valid and binding obligation of each such Credit
Party, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do
not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate (i) any
applicable law or regulation or (ii) the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon the Borrower or any of
its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries, except, in each case (other than clause
(b)(ii) with respect to any Credit Party), such as could not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
consolidated balance sheet and statements of income, stockholders equity and
cash flows (including the notes thereto) (i) of America Online as of and for the
fiscal years ended December 31, 1999 and December 31, 2000, reported on by Ernst
& Young LLP, independent public accountants, and (ii) of Time Warner as of and
for the fiscal years ended December 31, 1999 and December 31, 2000, reported on
by Ernst & Young LLP, independent accountants, copies of which have heretofore
been furnished to each Lender, present fairly, in all material respects, the
financial position and results of operations and cash flows respectively, of
America Online and Time Warner and their respective consolidated Subsidiaries as
of such dates and for such periods in accordance with GAAP.
(b) The unaudited pro forma combined balance sheet of the Borrower and its
consolidated Subsidiaries as at December 31, 2000 (including the notes thereto)
and the unaudited combined pro forma statement of income of the Borrower and its
consolidated Subsidiaries for the twelve-month period ending December 31, 2000,
copies of which have heretofore been furnished to each Lender, have been
prepared giving effect (as if the merger had occurred on January 1, 2000) to the
consummation of the merger of America Online and Time
42
Warner. The financial statements described in this paragraph have been prepared
based on the best information available to the Borrower as of the date of
delivery thereof and present fairly on a pro forma basis the estimated combined
financial position of the Borrower and its consolidated Subsidiaries as of
December 31, 2000 and the combined results of their operations for the
twelve-month period then ended, assuming that the merger of America Online and
Time Warner occurred on January 1, 2000.
(c) The unaudited consolidated balance sheets and statements of income,
stockholders equity and cash flows of the Borrower and its consolidated
Subsidiaries as of and for the three or six months ended March 31, 2001 and June
30, 2001, copies of which have heretofore been furnished to each Lender, present
fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as
of such date and for such periods in accordance with GAAP.
(d) Since June 30, 2001, there has been no material adverse change in the
business, assets, operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its Subsidiaries has
good title to, or valid leasehold interests in, all its real and personal
property, except for defects in title that could not reasonably be expected to
result in a Material Adverse Effect.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to use,
all trademarks, trade names, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits, investigations or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries (i)
which could reasonably be expected to be adversely determined and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect or (ii) that involve this
Agreement or the Transactions.
(b) Except with respect to any matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, (x) neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability or (iii) has received notice of
any claim with respect to any Environmental Liability and (y) the Borrower has
no knowledge of any basis for any Environmental Liability on the part of any of
its Restricted Subsidiaries.
SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and
its Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments
43
binding upon it or its property, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. No Default has occurred and is continuing.
SECTION 3.08. Government Regulation. Neither the Borrower nor any of its
Subsidiaries is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940, (b) a "holding company" as
defined in, or subject to regulation under, the Public Utility Holding Company
Act of 1935, or (c) is subject to any other statute or regulation which
regulates the incurrence of indebtedness for borrowed money, other than, in the
case of this clause (c), Federal and state securities laws and as could not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has timely
filed or caused to be filed all Tax returns and reports required to have been
filed and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as applicable, has
set aside on its books adequate reserves in accordance with GAAP or (b) to the
extent that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Disclosure. As of the date hereof and the Effective Date, all
information heretofore or contemporaneously furnished by or on behalf of the
Borrower or any Subsidiary (including all information contained in the Credit
Documents but not including any projected financial statements), when taken
together with the reports and other filings with the SEC made under the Exchange
Act by any Credit Party since December 31, 2000, is, and all other such
information hereafter furnished, including all information contained in any of
the Credit Documents, including any annexes or schedules thereto, by or on
behalf of the Borrower or any Subsidiary to or on behalf of any Lender is and
will be (as of their respective dates and the Effective Date), true and accurate
in all material respects and not incomplete by omitting to state a material fact
to make such information not misleading at such time. There is no fact of which
the Borrower or any Guarantor is aware which has not been disclosed to the
Lenders in writing pursuant to the terms of this Agreement prior to the date
hereof and which, singly or in the aggregate with all such other facts of which
the Borrower or any Guarantor is aware, could reasonably be expected to result
in a Material Adverse Effect. All statements of fact and representation
concerning the present and anticipated business, operations and assets of the
Borrower and any Subsidiary, the Credit Documents and the transactions referred
to therein are true and correct in all material respects.
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ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans
and of the Issuing Bank to Issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02):
(a) Credit Documents. The Documentation Manager (or its counsel) shall
have received (i) this Agreement executed and delivered by each party
hereto and (ii) a Guarantee, executed and delivered by each of the
Guarantors.
(b) Opinion of Counsel. The Documentation Manager shall have received
the favorable written opinions (addressed to the Documentation Manager and
the Lenders and dated the Effective Date) of (i) Cravath, Swaine & Xxxxx,
counsel for the Credit Parties, and (ii) in-house counsel to the Credit
Parties, in each case in form and substance reasonably satisfactory to the
Documentation Manager. The Borrower hereby requests each such counsel to
deliver such opinions.
(c) Closing Certificate. The Documentation Manager shall have received
a certificate from each Credit Party, in form and substance reasonably
satisfactory to the Documentation Manager, dated the Effective Date and
signed by the president, a vice president, a financial officer or an
equivalent officer of such Credit Party, including, in the case of the
Borrower, confirmation of compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.
(d) Fees. The Borrower shall have paid all fees required to be paid on
or before the Effective Date by the Borrower in connection with the
revolving credit facility provided for in this Agreement.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Bank to Issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
December 31, 2001 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit, is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Credit Parties set forth
in the Credit Documents (other than those set forth in Sections 3.04(d) and
3.06 on any date other than the Effective Date) shall be true and correct
in all material respects on and as of the date of such Borrowing or the
date of issuance, amendment, renewal or extension of such Letter of Credit,
as applicable.
45
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default or Event of Default shall have
occurred and be continuing.
(c) On the date of any Borrowing hereunder, there shall be a ratable
borrowing made to the Borrower on such date by the lenders under the
Facility A Agreement in accordance with the terms thereof.
(d) On the date of any issuance of Letters of Credit hereunder, there
shall be a ratable issuance of letters of credit on such date by the
issuing bank under the Facility A Agreement in accordance with the terms
thereof. On the date of any amendment, renewal or extension of any Letter
of Credit hereunder, there shall be a conforming amendment, renewal or
extension of the corresponding Letter of Credit issued under the Facility A
Agreement.
Each Borrowing and each issuance, amendment, renewal, or extension of a Letter
of Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the applicable matters specified in
paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan, all fees payable hereunder and all other Obligations
shall have been paid in full (but with respect to such other Obligations only to
the extent that actual amounts hereunder are owing at the time the Loans,
together with interest and fees, have been paid in full) and all Letters of
Credit shall have expired or terminated and all LC Disbursements shall have been
reimbursed, the Borrower (for itself and its Subsidiaries) covenants and agrees
with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Borrower
will, and, until such time as TWE becomes a Guarantor, will cause TWE to,
furnish to the Documentation Manager at its New York office (which will
distribute copies to each of the Lenders):
(a) within 105 days after the end of each fiscal year of such Person,
its audited consolidated balance sheet and related statements of
operations, stockholders' equity (or partnership capital) and cash flows as
of the end of and for such year and, with respect to the Borrower only, its
unaudited Adjusted Financial Statements for such fiscal year, setting forth
in each case in comparative form the figures for the previous fiscal year,
and, (i) in the case of the audited financial statements, reported on by
Ernst & Young LLP or other independent public accountants of recognized
national standing (without a "going concern" or like qualification or
exception and without any qualification or exception as to the scope of
such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in
46
accordance with GAAP consistently applied and (ii) in the case of the
Adjusted Financial Statements, certified by one of the Borrower's Financial
Officers as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied; provided that, so long as no Default has occurred and is
continuing, the Borrower shall not be required to furnish Adjusted
Financial Statements for any fiscal year if all Unrestricted Subsidiaries
of the Borrower (other than any such Unrestricted Subsidiaries that are
already treated as equity investments on the Borrower's financial
statements) on a combined basis would not have constituted a Material
Subsidiary of the Borrower for such fiscal year;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of such Person, its consolidated balance sheet
and related statements of operations, stockholders' equity (or partnership
capital) and cash flows and, with respect to the Borrower only, its
Adjusted Financial Statements as of the end of and for such fiscal quarter
and the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous
fiscal year, all certified by one of the Borrower's Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries on
a consolidated basis in accordance with GAAP consistently applied, subject
to normal year-end audit adjustments and the absence of footnotes; provided
that, so long as no Default has occurred and is continuing, the
Borrower shall not be required to furnish Adjusted Financial Statements for
any fiscal quarter if all Unrestricted Subsidiaries of the Borrower (other
than any such Unrestricted Subsidiaries that are already treated as equity
investments on the Borrower's financial statements) on a combined basis
would not have constituted a Material Subsidiary of the Borrower for such
fiscal quarter;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.01, 6.02,
6.03 and 6.08 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the SEC or with any national securities
exchange, or distributed by the Borrower or any of its Subsidiaries to its
security holders generally, as the case may be (other than registration
statements on Form S-8, filings under Sections 16(a) or 13(d) of the
Exchange Act and routine filings related to employee benefit plans); and
(e) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary,
47
or compliance with the terms of this Agreement, as the Documentation
Manager or any Lender may reasonably request (it being understood that the
Borrower shall not be required to provide any information or documents
which are subject to confidentiality provisions the nature of which
prohibit such disclosure).
Information required to be delivered pursuant to paragraphs (a), (b) and
(d) shall be deemed to have been delivered on the date on which the Borrower
provides notice to the Documentation Manager that such information has been
posted on the Borrower's website on the internet at the website address listed
on the signature pages of such notice, at xxx.xxx.xxx or at another website
identified in such notice and accessible by the Lenders without charge; provided
that the Borrower shall deliver paper copies of the reports and financial
statements referred to in paragraphs (a), (b) and (d) of this Section 5.01 to
the Documentation Manager or any Lender who requests the Borrower to deliver
such paper copies until written notice to cease delivering paper copies is given
by the Documentation Manager or such Lender.
SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Documentation Manager and each Lender prompt written notice of the following,
upon any such event becoming known to any Responsible Officer of the Borrower:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $100,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will
cause each of its Restricted Subsidiaries which are Material Subsidiaries to, do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, licenses, permits,
privileges and franchises material to the conduct of its business; provided that
the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.04.
SECTION 5.04. Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could reasonably be expected to result in a Material Adverse
Effect before the same shall become
48
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and
will cause each of its Restricted Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business (taken as a whole) in good
working order and condition, ordinary wear and tear excepted, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations (it being understood that, to the extent consistent with prudent
business practice, a program of self-insurance for first or other loss layers
may be utilized).
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and
will cause each of its Restricted Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Restricted Subsidiaries to, permit any representatives
designated by the Documentation Manager or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine its books and records,
and to discuss its affairs, finances and condition with its officers and, so
long as a representative of the Borrower is present, or the Borrower has
consented to the absence of such a representative, independent accountants (in
each case subject to the Borrower's or its Restricted Subsidiaries' obligations
under applicable confidentiality provisions), all at such reasonable times and
as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each
of its Restricted Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will be used only
for general corporate purposes, including the repayment of indebtedness of
existing and future Subsidiaries of the Borrower and for commercial paper
backup. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations U and X.
49
SECTION 5.09. Fiscal Periods; Accounting. The Borrower will keep the same
financial reporting periods as are in effect on the date hereof.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and
interest on each Loan, all fees payable hereunder and all other Obligations have
been paid in full (but with respect to such other Obligations only to the extent
that actual amounts hereunder are owing at the time the Loans, together with
interest and fees, have been paid in full) and all Letters of Credit shall have
expired or terminated and all LC Disbursements shall have been reimbursed, the
Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Financial Covenants.
(a) The Consolidated Leverage Ratio of the Borrower and its Restricted
Subsidiaries as of the last day of any fiscal quarter of the Borrower
(commencing with the first fiscal quarter ending after the Effective Date)
will not exceed 4.50 to 1.00.
(b) The Consolidated Net Worth of the Borrower at any time will not be
less than $125,000,000,000.
SECTION 6.02. Indebtedness.
(a) The Borrower will not permit any of its Restricted Subsidiaries
(other than (i) a Credit Party or (ii) TWE and the consolidated
Subsidiaries of TWE) to, create, incur, assume or permit to exist any
Indebtedness, except:
(i) with respect to all such Restricted Subsidiaries that are also
Subsidiaries of Time Warner, Indebtedness of up to an aggregate principal
amount of $650,000,000 at any one time outstanding;
(ii) with respect to all such Restricted Subsidiaries that are also
Subsidiaries of America Online, Indebtedness of up to an aggregate
principal amount of $350,000,000 at any one time outstanding;
(iii) Indebtedness of any such Restricted Subsidiary to the Borrower
or any Subsidiary;
(iv) Guarantee Obligations of any such Restricted Subsidiary with
respect to Indebtedness of the Borrower or any wholly owned Restricted
Subsidiary;
(v) Indebtedness of any such Restricted Subsidiary incurred to finance
the acquisition, construction or improvement of any property, including
Capital Lease Obligations and any Indebtedness assumed in connection with
the acquisition of any such property or secured by a Lien on any such
property prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the
50
outstanding principal amount thereof; provided that the aggregate principal
amount of Indebtedness permitted by this clause (v) with respect to any
such property shall not exceed 110% of the purchase price for, or the cost
of construction or improvement of, such property;
(vi) Indebtedness of any Person that becomes a Restricted Subsidiary
after the date hereof; provided that (x) such Indebtedness exists at the
time such Person becomes a Subsidiary and is not created in contemplation
of or in connection with such Person becoming a Subsidiary and (y) such
Indebtedness does not, directly or indirectly, have recourse (including by
way of setoff) to the Borrower or any of its Restricted Subsidiaries or any
asset thereof other than to the Person so acquired and its Subsidiaries and
the assets of the Person so acquired and its Subsidiaries; and
(vii) Film Financings.
(b) The Borrower will not permit TWE or any of its consolidated
Subsidiaries to create, incur or assume any Indebtedness unless, after giving
effect to the creation, incurrence or assumption of such Indebtedness, the
Consolidated Leverage Ratio of TWE will not exceed (i) at any time when 95% or
more of the Capital Stock of TWE is, directly or indirectly, owned (beneficially
or of record) or held by the Borrower, 4.50 to 1.00 and (ii) at any other time,
5.00 to 1.00; provided, that once TWE becomes a Guarantor this paragraph 6.02(b)
shall cease to apply.
SECTION 6.03. Liens. The Borrower will not, and will not permit any of its
Restricted Subsidiaries, to create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, except:
(a) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof; provided, that such Lien shall
secure only those obligations which it secures on the date hereof and
extensions, renewal and replacements thereof that do not increase the
outstanding principal amount thereof and such Liens do not secure an
aggregate principal amount of Indebtedness in excess of $100,000,000 or
apply to property or assets of the Borrower and its Restricted Subsidiaries
in excess of $100,000,000;
(b) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (ii)
such Lien shall not apply to any other property or assets of the Borrower
or any Subsidiary and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
(c) Liens on property acquired, constructed or improved by the
Borrower or any Subsidiary; provided that (i) such security interests
secure Indebtedness permitted by
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clause (v) of Section 6.02, (ii) the Indebtedness secured thereby does not
exceed 110% of the cost of acquiring, constructing or improving such
property and (iii) such security interests shall not apply to any other
property or assets of the Borrower or any of its Subsidiaries;
(d) Liens to secure Film Financings; provided that such Liens shall
extend only to the property or assets acquired with such Film Financing;
(e) Liens on Capital Stock of the Borrower and proceeds therefrom
supporting Stock Option Loans to the extent contemplated by the definition
thereof;
(f) any Copyright Liens securing obligations specified in the
definition thereof;
(g) Liens securing Indebtedness of the Borrower or any Restricted
Subsidiary and owing to such Borrower or to a Restricted Subsidiary of such
Borrower;
(h) Liens on interests in or investments in any Unrestricted
Subsidiary or in any other Person that is not a Subsidiary of the Borrower
securing Indebtedness of such Unrestricted Subsidiary or such other Person;
(i) Liens for taxes, assessments or governmental charges or levies not
yet due and payable or which are being contested in good faith by
appropriate proceedings;
(j) Liens incidental to the ordinary conduct of the Borrower's
business or the ownership of its assets which were not incurred in
connection with the borrowing of money, such as carrier's, warehousemen's,
materialmen's, landlord's and mechanic's liens, and which do not in the
aggregate materially detract from the value of its assets or materially
impair the use thereof in the ordinary course of its business; and
(k) other Liens in respect of property or assets of the Borrower or
any Restricted Subsidiary so long as at the time of the securing of any
obligations related thereto, the aggregate principal amount of all such
secured obligations does not exceed 5% of the Consolidated Total Assets of
the Borrower at such time (it being understood that any Lien permitted
under any other clause in this Section 6.03 shall not be included in the
computation described in this paragraph).
SECTION 6.04. Mergers, Etc. The Borrower will not, and will not permit any
of its Restricted Subsidiaries to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) all or a substantial portion of the Borrower's consolidated
assets, or all or a substantial portion of the stock of all of its Restricted
Subsidiaries, taken as a whole (in each case, whether now owned or hereafter
acquired), or liquidate or dissolve, unless (a) at the time thereof and
immediately after giving effect thereto no Default or Event of Default shall
have occurred and be continuing and (b) after giving effect to any such
transaction, the business, taken as a whole, of the Borrower and its Restricted
Subsidiaries shall not have been altered in a fundamental and substantial manner
from that conducted by them, taken as a whole, immediately prior to the
Effective Date, provided that (i) the Borrower shall
52
not merge into or consolidate with such other Person, unless the Borrower shall
survive such consolidation or merger, and (ii) the Borrower shall not liquidate
or dissolve or permit any Guarantor to liquidate or dissolve except into the
Borrower or another Guarantor.
SECTION 6.05. Investments. The Borrower will not, and will not cause or
permit any of its Restricted Subsidiaries to, make any Investment (other than
any Investment in the ordinary course of the operation of its business) if,
before or after giving effect to the commitment thereto on a pro forma basis, a
Default shall have occurred and be continuing.
SECTION 6.06. Restricted Payments. The Borrower will not declare or make,
or agree to pay or make, directly or indirectly, any Restricted Payment, except
the Borrower may (a) declare and pay dividends with respect to its capital stock
payable solely in additional shares of its common stock and (b) make Restricted
Payments so long as after giving effect to the making of such Restricted
Payment, no Default shall have occurred and be continuing on a pro forma basis.
SECTION 6.07. Transactions with Affiliates. The Borrower will not, and will
not permit any of its Restricted Subsidiaries to, directly or indirectly, enter
into any material transaction with any of its Affiliates, except (a)
transactions entered into prior to the date hereof or contemplated by any
agreement entered into prior to the date hereof, (b) in the ordinary course of
business or at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties, (c) transactions between or among the Borrower and its
Restricted Subsidiaries or between or among Restricted Subsidiaries, (d) any
arrangements with officers, directors, representatives or other employees of the
Borrower and its Subsidiaries relating specifically to employment as such and
(e) transactions that are otherwise permitted by this Agreement.
SECTION 6.08. Unrestricted Subsidiaries. (a) Schedule 6.08 sets forth those
Subsidiaries (other than a Guarantor) of the Borrower that have been designated
as Unrestricted Subsidiaries as of the date hereof. The Borrower may designate
any other of its Subsidiaries (other than a Guarantor) as Unrestricted
Subsidiaries from time to time in compliance with the provisions of this Section
6.08. The Borrower will not designate any of its Subsidiaries as an Unrestricted
Subsidiary unless (i) such Subsidiary is designated as an Unrestricted
Subsidiary within 90 days of the time it becomes a Subsidiary; and (ii) at the
time such Subsidiary is designated as an Unrestricted Subsidiary, before and
after giving effect to such designation on a pro forma basis, no Default shall
have occurred and be continuing, as shown in an Officers' Certificate delivered
to the Documentation Manager at the time of such designation. Such Officers'
Certificate shall also state the specific purpose for which such designation is
being made. All Subsidiaries of Unrestricted Subsidiaries shall be Unrestricted
Subsidiaries.
(b) The Borrower will not designate or re-designate any Unrestricted
Subsidiary as a Restricted Subsidiary, unless at the time such Unrestricted
Subsidiary is so designated or re-designated as a Restricted Subsidiary, before
and after giving effect to such designation or re-designation on a pro forma
basis, no Default shall have occurred and be continuing, as shown in an
Officer's Certificate delivered to the Documentation Manager at the time of such
designation or re-designation.
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ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become
due and payable, and such failure shall continue unremedied for a period of
five days;
(c) any representation or warranty made or deemed made by or on behalf
of any Credit Party in any Credit Document or any amendment or modification
thereof, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with any Credit Document or
any amendment or modification thereof, shall prove to have been incorrect
in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02 or 5.03 (with respect to
the Borrower's existence) or in Article VI;
(e) any Credit Party shall fail to observe or perform any covenant,
condition or agreement contained in the Credit Documents (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Documentation Manager (given at the request of any Lender) to the
Borrower;
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable after giving effect to any applicable grace periods;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (after giving effect to any applicable grade periods) the holder
or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior
to its scheduled maturity; provided that this clause (g) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the
54
Borrower or any Material Subsidiary or its debts, or of a substantial part
of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Material Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Material Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Borrower or any Material Subsidiary shall become unable, admit
in writing or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $100,000,000 shall be rendered against the Borrower,
any Material Subsidiary or any combination thereof or any action shall be
legally taken by a judgment creditor (whose liquidated judgment, along with
those of any other judgment creditor's, exceeds $100,000,000) to attach or
levy upon any assets of the Borrower or any Material Subsidiary to enforce
any such judgment, and the same shall remain undischarged for a period of
60 consecutive days during which execution shall not be effectively stayed,
vacated or bonded pending appeal;
(l) an ERISA Event shall have occurred that, when taken together with
all other ERISA Events (with respect to which the Borrower has a liability
which has not yet been satisfied) that have occurred, could, reasonably be
expected to result in a Material Adverse Effect;
(m) except as otherwise permitted by this Agreement, any of the
Guarantees shall cease, for any reason, to be in full force and effect or
any Credit Party shall so assert; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Documentation Manager may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different
55
times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder (including all amounts of LC Exposure, whether or not the
beneficiary of the then outstanding Letters of Credit shall have presented the
documents required therein), shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with respect to the
Borrower described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder (including all amounts of LC Exposure, whether or not
the beneficiary of the then outstanding Letters of Credit shall have presented
the documents required therein), shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Documentation Manager shall at such
time deposit in a cash collateral account opened by the Documentation Manager an
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit. Amounts held in such cash collateral account shall be applied by the
Documentation Manager to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Credit Documents. The
Documentation Manager shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Documentation Manager and at the Borrower's
risk and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. After all such
Letters of Credit shall have expired or been fully drawn upon, all reimbursement
obligations shall have been satisfied and all other obligations of the Borrower
hereunder and other the other Credit Documents shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Borrower (or such other Person as may be lawfully entitled thereto).
ARTICLE VIII
THE AGENTS & THE DOCUMENTATION MANAGER
Each of the Lenders hereby irrevocably appoints the Documentation Manager
as its agent and authorizes the Documentation Manager to take such actions on
its behalf and to exercise such powers as are delegated to the Documentation
Manager by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
Each bank serving as an Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not an Agent, and such bank and its Affiliates may accept
deposits from, lend money to and
56
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not an Agent hereunder.
The Documentation Manager shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Documentation Manager shall not be subject to any fiduciary
or other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Documentation Manager shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Documentation Manager
is required to exercise in writing by the Required Lenders (or, if so specified
by this Agreement, all the Lenders), and (c) except as expressly set forth
herein, the Documentation Manager shall not have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
bank serving as Documentation Manager or any of its Affiliates in any capacity.
The Documentation Manager shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or, if so
specified by this Agreement, all the Lenders) or in the absence of its own gross
negligence or willful misconduct. The Documentation Manager shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Documentation Manager by the Borrower or a Lender, and the
Documentation Manager shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Credit Document, (ii) the contents
of any certificate, report or other document delivered under any Credit Document
or in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in the Credit
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Credit Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Documentation Manager.
The Documentation Manager shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by a proper Person. An initial list of the
proper Persons with respect to the Borrower appears on Schedule 8. Schedule 8
shall not be altered except in writing by a Person appearing thereon (or by a
successor to such Person occupying the equivalent office). The Documentation
Manager also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon so long as such statement, in the case of a
Borrowing Request, complies with the requirements of Section 2.03 in all
material respects (it being understood that oral notices of borrowing will be
confirmed in writing by the Borrower in accordance with Section 2.03). The
Documentation Manager may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
The Documentation Manager may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Documentation Manager. The Documentation Manager and any such sub-agent may
perform any and all its
57
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions of the preceding paragraphs shall apply to
any such sub-agent and to the Related Parties of the Documentation Manager and
any such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Documentation Manager.
Subject to the appointment and acceptance of a successor Documentation
Manager as provided in this paragraph, the Documentation Manager may resign at
any time by notifying the Lenders and the Borrower. Upon any such resignation,
the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor which, so long as no Event of Default is continuing, shall
be reasonably acceptable to the Borrower. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Documentation Manager gives notice of its
resignation, then the retiring Documentation Manager may, on behalf of the
Lenders, appoint a successor Documentation Manager which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Documentation Manager hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Documentation Manager, and the retiring
Documentation Manager shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Documentation Manager
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Documentation Manager's
resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for the benefit of such retiring Documentation Manager, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by it while it was acting as Documentation Manager.
The Lenders agree to indemnify each Agent in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their Commitments in effect (or at any
time after the Commitments have terminated, their Revolving Credit Exposure) on
the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with their Commitments (or, if the Commitments have terminated earlier, their
Revolving Credit Exposures) immediately prior to such date), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that
may at any time (whether before or after the payment of the Loans) be imposed
on, incurred by or asserted against such Agent in any way relating to or arising
out of, the Commitments, this Agreement, any of the other Credit Documents or
any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
such Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent's gross
negligence or willful misconduct. The agreements in this Section shall survive
the payment of the Loans and all other amounts payable hereunder.
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Each Lender acknowledges that it has, independently and without reliance
upon any Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon any Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder
or thereunder.
The Agents shall not have any duties or responsibilities hereunder in their
capacity as such.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Chief Financial Officer, (Telecopy No. (212)
405-5213), with copies to its General Counsel (Telecopy No. (212)
258-3172), and its Treasurer (Telecopy No. (000) 000-0000);
(b) if to the Documentation Manager, to Global Service Unit Operations
New York, 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx
Xxxxx, (Telephone No. 000-000-0000 Telecopy No. 212-412-5306), with a copy
to (i) Global Service Unit Operations U.K.-London, 5 The North Colonnade,
Canary Wharf, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx, Attention of Xxx Xxxxxxx
(Telephone No. 00 0 00 0000 0000 Telecopy No. 44 0 20 7516 9231) in the
case of any notice with respect to Loans or Letters of Credit denominated
in Euros or Pounds and (ii) Global Loan/Structured Loan Department, 0-0-0
Xxxxxxxx, Xxxxxxx-xx, Xxxxx 000-0000, Xxxxx, Attention of Xxxxxx Xxxxxxxx
(Telephone No. 000-000 0000 0000 Telecopy No. 011-813 3276 5085) in the
case of any notice with respect to Loans or Letters of Credit denominated
in Yen;
(c) if to the Swingline Lender, to it as may be provided by such
Swingline Lender from time to time;
(d) if to an Issuing Bank, to it as may be provided by such Issuing
Bank from time to time; and
(e) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other
59
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Documentation Manager, the Issuing Bank or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Documentation Manager, the Issuing Bank and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Documentation
Manager, the Issuing Bank or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders or by the Borrower and the
Documentation Manager with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.17(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
release any material Guarantor without the written consent of each Lender, or
(vi) change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Documentation Manager, the Issuing
Bank or the Swingline Lender hereunder without the prior written consent of the
Documentation Manager, the Issuing Bank or the Swingline Lender, as the case may
be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall
pay (i) all reasonable out-of-pocket expenses incurred by the Documentation
Manager and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Documentation Manager in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of the Credit Documents or any amendments, modifications or
waivers of the provisions thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), and (ii) all out-of-pocket expenses
incurred by the Documentation Manager, the Issuing Bank or any Lender, including
the fees, charges and
60
disbursements of any counsel for the Documentation Manager, the Issuing Bank or
any Lender, in connection with the enforcement or protection of its rights in
connection with any Credit Document, including its rights under this Section, or
in connection with the Loans made or Letters of Credit issued hereunder,
including in connection with any workout, restructuring or negotiations in
respect thereof.
(b) The Borrower shall indemnify each Agent, each Issuing Bank and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the reasonable fees, charges and disbursements of any counsel for any
Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of any Credit
Documents or any agreement or instrument contemplated thereby, the performance
by the parties hereto of their respective obligations hereunder or the
consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to be
paid by it to the Documentation Manager, the Issuing Bank or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to the Documentation Manager, the Issuing Bank or the Swingline Lender,
as the case may be, such Lender's Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Documentation Manager, the Issuing Bank or the Swingline
Lender in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors
61
and assigns permitted hereby (including any Affiliate of the Issuing Bank that
issues any Letter of Credit), except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender except in accordance with Section 6.04 (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Documentation Manager,
the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Any Lender other than a Conduit Lender may assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to
it); provided that (i) except in the case of an assignment to a Lender or a
Lender Affiliate, each of the Borrower and (a) the Swingline Lender (but only in
the case of an assignment of all or a portion of a Commitment in respect of
Swingline Exposure) or (b) the Issuing Bank (but only in the case of an
assignment of all or a portion of a Commitment in respect of LC Exposure) must
give their prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender or
an Affiliate of a Lender or an assignment of the entire remaining balance of the
assigning Lender's Commitment, each assignment shall not be less than an
aggregate principal amount of (pound)10,000,000, (iii) except in the case of an
assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire remaining balance of the assigning Lender's Commitment, the remaining
amount of the Commitment of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Documentation Manager) shall not be less than
(pound)10,000,000 unless the Borrower otherwise consents, (iv) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, (v) except in
the case of an assignment to an Affiliate of the assigning Lender on or about
the Effective Date, the parties to each assignment shall execute and deliver to
the Documentation Manager an Assignment and Acceptance, together with a
processing and recordation fee of (pound)2,500, and (vi) the assignee, if it
shall not be a Lender, shall deliver to the Documentation Manager an
Administrative Questionnaire; provided further that any consent of the Borrower
otherwise required under this paragraph shall not be required if an Event of
Default under clause (h) or (i) of Article VII has occurred and is continuing.
Upon acceptance and recording pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall (i)
continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03)
and (ii) continue to be subject to the confidentiality provisions hereof. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
62
obligations in accordance with paragraph (e) of this Section. Notwithstanding
the foregoing, any Conduit Lender may assign at any time to its designating
Lender hereunder without the consent of the Borrower or the Documentation
Manager any or all of the Loans it may have funded hereunder and pursuant to its
designation agreement and without regard to the limitations set forth in the
first sentence of this Section.
(c) The Documentation Manager, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Documentation Manager,
the Issuing Bank and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Documentation Manager shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(e) Any Lender other than a Conduit Lender may, without the consent of the
Borrower, the Documentation Manager or the Swingline Lender, sell participations
to one or more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Documentation
Manager and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in the first proviso to
Section 9.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.14 or 2.16 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender
63
if it were a Lender shall not be entitled to the benefits of Section 2.16
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.16(f) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any such pledge or assignment to a Federal Reserve Bank, and
this Section shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
(h) The Borrower, upon receipt of written notice from the relevant Lender,
agrees to issue Notes to any Lender requiring Notes to facilitate transactions
of the type described in paragraph (f) above.
(i) Each of the Borrower, each Lender and the Documentation Manager hereby
confirms that it will not institute against a Conduit Lender or join any other
Person in instituting against a Conduit Lender any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any state bankruptcy or
similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided, however,
that each Lender designating any Conduit Lender hereby agrees to indemnify, save
and hold harmless each other party hereto for any loss, cost, damage or expense
arising out of its inability to institute such a proceeding against such Conduit
Lender during such period of forbearance.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the Documentation
Manager or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.14, 2.15, 2.16 and
9.03 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Lenders
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section
4.01, this Agreement shall become
64
effective when it shall have been executed by the Documentation Manager and when
the Documentation Manager shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law
of the State of New York.
(b) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to the Credit Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding shall be
heard and determined in such New York State or, to the extent permitted by law,
in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
65
(d) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Documentation Manager and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, provided that in
connection with any such requirement by a subpoena or similar legal process, the
Borrower is given prior notice to the extent such prior notice is permissible
under the circumstances and an opportunity to object to such disclosure, (d) to
any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (f) subject to an express agreement for
the benefit of the Borrower containing provisions substantially the same as
those of this Section, to any (i) assignee (or Conduit Lender) of or Participant
in, or any prospective assignee (or Conduit Lender) of or Participant in, any of
its rights or obligations under this Agreement or (ii) hedging agreement
counterparty (or such contractual counterparty's professional advisor), (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Documentation Manager or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes of
this Section, "Information" means all information received from the Borrower,
whether oral or written, relating to the Borrower or its business, other than
any such information that is available to the Documentation Manager or any
Lender on a nonconfidential basis prior to disclosure by the Borrower; provided
that, in the case of information received from the Borrower after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be
66
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information,
including in accordance with Regulation FD as promulgated by the SEC.
SECTION 9.13. Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) neither the Documentation Manager nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Credit Documents, and the
relationship between Documentation Manager and Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
SECTION 9.14. Judgment Currency. If, for the purposes of obtaining judgment
in any court, it is necessary to convert a sum due hereunder or under any other
Credit Document in one currency into another currency, the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Documentation Manager could purchase the first currency with such other currency
on the Business Day preceding that on which final judgment is given. The
obligation of the Borrower in respect of any such sum due from it to either the
Documentation Manager or any Lender hereunder or under any other Credit Document
shall, notwithstanding any judgment in a currency (the "Judgment Currency")
other than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement (the "Agreement Currency"), be
discharged only to the extent that on the Business Day following receipt by the
Documentation Manager or such Lender of any sum adjudged to be so due in the
Judgment Currency, the Documentation Manager or such Lender may in accordance
with normal banking procedures in the relevant jurisdiction purchase the
Agreement Currency with the Judgment Currency; if the amount of the Agreement
Currency so purchased is less than the sum originally adjudged to be due to the
Documentation Manager or such Lender in the Agreement Currency (as converted on
the date of final judgment), the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Documentation Manager or
such Lender against such loss. If the amount of the Agreement Currency so
purchased is greater than the sum originally adjudged to be due to the
Documentation Manager or such Lender in such currency, the Documentation Manager
or such Lender agrees to return the amount of any excess to the Borrower (or to
any other Person who may be entitled thereto under applicable law). The
obligations of the Borrower contained in this Section 9.14 shall survive the
termination of this Agreement and the payment of all other amounts owing
hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
AOL TIME WARNER INC.
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
BARCLAYS BANK PLC,
as Documentation Manager,
By /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
HSBC BANK USA
By /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
BNP Paribas
By /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Director
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Director
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
By /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
THE FUJI BANK LIMITED
By /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
