Exhibit 10.1
EXECUTION VERSION
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$3,500,000,000
CREDIT AGREEMENT
Dated as of March 3, 2006,
among
QVC, INC.,
as Borrower,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK, N.A.
as Administrative Agent, and
WACHOVIA CAPITAL MARKETS, LLC,
as Syndication Agent
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
WACHOVIA CAPITAL MARKETS, LLC,
as Joint Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms............................................... 1
SECTION 1.02. Classification of Loans and Borrowings...................... 16
SECTION 1.03. Terms Generally............................................. 16
SECTION 1.04. Accounting Terms; GAAP...................................... 17
SECTION 1.05. Change of Currency.......................................... 17
SECTION 1.06. Currency Equivalents Generally.............................. 17
ARTICLE II
The Credits
SECTION 2.01. Term Commitments............................................ 17
SECTION 2.02. Procedure for Term Loan Borrowings.......................... 18
SECTION 2.03. Revolving Commitments....................................... 19
SECTION 2.04. Procedure for Revolving Loan Borrowing...................... 19
SECTION 2.05. Funding of Borrowings....................................... 20
SECTION 2.06. Interest Elections.......................................... 20
SECTION 2.07. Termination and Reduction of Commitments.................... 21
SECTION 2.08. Repayment of Loans; Evidence of Debt........................ 22
SECTION 2.09. Prepayments................................................. 22
SECTION 2.10. Fees........................................................ 23
SECTION 2.11. Interest.................................................... 23
SECTION 2.12. Alternate Rate of Interest.................................. 24
SECTION 2.13. Increased Costs............................................. 24
SECTION 2.14. Break Funding Payments...................................... 25
SECTION 2.15. Taxes....................................................... 26
SECTION 2.16. Pro Rata Treatment and Payments............................. 27
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.............. 28
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers........................................ 29
SECTION 3.02. Authorization; Enforceability............................... 30
SECTION 3.03. Governmental Approvals; No Conflicts........................ 30
SECTION 3.04. Financial Position.......................................... 30
SECTION 3.05. Properties.................................................. 30
SECTION 3.06. Litigation and Environmental Matters........................ 30
SECTION 3.07. Compliance with Laws and Agreements......................... 31
SECTION 3.08. Investment and Holding Company Status....................... 31
SECTION 3.09. Taxes....................................................... 31
SECTION 3.10. ERISA....................................................... 31
SECTION 3.11. Disclosure.................................................. 31
ARTICLE IV
Conditions
SECTION 4.01. Closing Date................................................ 32
SECTION 4.02. Each Credit Event........................................... 33
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements; Other Information..................... 33
SECTION 5.02. Notices of Material Events.................................. 34
SECTION 5.03. Existence; Conduct of Business.............................. 34
SECTION 5.04. Payment of Obligations...................................... 34
SECTION 5.05. Maintenance of Properties; Insurance........................ 35
SECTION 5.06. Books and Records; Inspection Rights........................ 35
SECTION 5.07. Compliance with Laws........................................ 35
SECTION 5.08. Use of Proceeds............................................. 35
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness................................................ 35
SECTION 6.02. Liens....................................................... 36
SECTION 6.03. Fundamental Changes......................................... 36
SECTION 6.04. Disposition of Property..................................... 36
SECTION 6.05. Restricted Payments......................................... 37
SECTION 6.06. Transactions with Affiliates................................ 37
SECTION 6.07. Changes in Fiscal Periods................................... 37
SECTION 6.08. Sales and Leasebacks........................................ 37
SECTION 6.09. Clauses Restricting Subsidiary Distributions................ 37
SECTION 6.10. Consolidated Leverage Ratio................................. 38
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
SECTION 8.01. Appointment and Authorization............................... 40
SECTION 8.02. Administrative Agent and Affiliates......................... 40
SECTION 8.03. Action by Administrative Agent.............................. 40
SECTION 8.04. Consultation with Experts................................... 40
SECTION 8.05. Delegation of Duties........................................ 41
SECTION 8.06. Successor Administrative Agent.............................. 41
SECTION 8.07. Credit Decision............................................. 41
SECTION 8.08. The Arrangers; the Syndication Agent........................ 41
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices..................................................... 41
SECTION 9.02. Waivers; Amendments......................................... 42
SECTION 9.03. Expenses; Indemnity; Damage Waiver.......................... 43
SECTION 9.04. Successors and Assigns...................................... 44
SECTION 9.05. Survival.................................................... 47
SECTION 9.06. Counterparts; Integration; Effectiveness.................... 47
SECTION 9.07. Severability................................................ 47
SECTION 9.08. Right of Setoff............................................. 47
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.. 47
SECTION 9.10. WAIVER OF JURY TRIAL........................................ 48
SECTION 9.11. Headings.................................................... 48
SECTION 9.12. Confidentiality............................................. 48
SECTION 9.13. Judgment Currency........................................... 49
SECTION 9.14. USA PATRIOT Act............................................. 49
SCHEDULES:
Schedule 1.01A -- Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 6.02 -- Existing Liens
Schedule 6.09 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B-1 -- Form of Opinion of Borrower's Counsel
Exhibit B-2 -- Form of Opinion of General Counsel of the Borrower
CREDIT AGREEMENT dated as of March 3, 2006 (this "AGREEMENT"), among QVC,
INC., a Delaware corporation (the "BORROWER"), the LENDERS party hereto from
time to time, JPMORGAN CHASE BANK, N.A., as administrative agent (in such
capacity, the "ADMINISTRATIVE AGENT") for the Lenders, WACHOVIA CAPITAL MARKETS,
LLC ("WCM") as syndication agent (in such capacity, the "SYNDICATION AGENT"),
and JPMORGAN SECURITIES INC. and WCM as joint lead arrangers and joint
bookrunners (collectively, in such capacity, the "JOINT LEAD ARRANGERS").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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.
"ADJUSTMENT DATE" has the meaning assigned to such term in the definition
of "Pricing Grid."
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank, N.A. in its capacity as
administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"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 common Control with the Person specified.
"AFFILIATED PERSONS" mean, with respect to any specified Person, (a) such
specified Person's parents, spouse, siblings, descendants, step children, step
grandchildren, nieces and nephews and their respective spouses, (b) the estate,
legatees and devisees of such specified Person and each of the Persons referred
to in clause (a), and (c) any company, partnership, trust or other entity or
investment vehicle Controlled by any of the Persons referred to in clause (a) or
(b) or the holdings of which are for the primary benefit of any of such Persons.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to the
higher 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.
"ALTERNATIVE CURRENCY" means Sterling, Yen or Euros.
"ALTERNATIVE CURRENCY LOAN" means a Loan that is a Eurocurrency Loan and
that is made in an Alternative Currency pursuant to the applicable Borrowing
Request.
"ALTERNATIVE CURRENCY DELAYED DRAW TERM SUBLIMIT" means, with respect to
all Alternative Currencies, the Dollar Amount of $600,000,000.
"ALTERNATIVE CURRENCY REVOLVING SUBLIMIT" means, with respect to all
Alternative Currencies, the Dollar Amount of $650,000,000.
"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 each Type of Loan, (a) prior to the first
Adjustment Date occurring after the Closing Date, 0.350% for Eurocurrency Loans
and 0% for ABR Loans and (b) on and after the first Adjustment Date occurring
after the Closing Date, a percentage determined in accordance with the Pricing
Grid.
"APPLICABLE TIME" means, with respect to any Borrowings and payments in any
Alternative Currency the local time in the place of settlement for such
Alternative Currency, as may be reasonably determined by the Administrative
Agent to be necessary for timely settlement on the relevant date in accordance
with normal banking procedures in the place of payment and notified to the
relevant parties hereto.
"APPROVED FUND" has the meaning assigned to such term in Section 9.04.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption 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 Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"AVAILABLE DELAYED DRAW TERM COMMITMENTS" means, as to any Delayed Draw
Term Lender at any time, an amount equal to the excess, if any, of (a) such
Lender's Delayed Draw Term Commitment then in effect at such time OVER (b) the
Dollar Amount of such Lender's Delayed Draw Term Loans then outstanding.
"AVAILABLE REVOLVING COMMITMENT" means, as to any Revolving Lender at any
time, an amount equal to the excess, if any, of (a) such Lender's Revolving
Commitment then in effect at such time OVER (b) the Dollar Amount of such
Lender's Revolving Loans then outstanding.
"BENEFICIAL OWNER" shall be determined in accordance with Rule 13d-3 and
Rule 13d-5 under the Exchange Act, as in effect on the date hereof.
"Beneficially own," "beneficially owned" and "beneficial ownership" have
meanings correlative to that of beneficial owner.
"BOARD" means the Board of Governors of the Federal Reserve System of the
United States of America.
"BORROWER" means QVC, Inc., a Delaware corporation.
"BORROWING" means a group of Loans of the same Type under a single
Facility, 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.
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"BORROWING DATE" means any Business Day specified by the Borrower as a date
on which the Borrower requests the relevant Lenders to make Loans hereunder.
"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, when used in connection with a Eurocurrency Loan,
the term "BUSINESS DAY" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"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.
"CHANGE IN CONTROL" means the acquisition of beneficial ownership by any
person or group (excluding any Permitted Holder or group Controlled by any
Permitted Holder) of more than 30% of the aggregate voting power of all
outstanding classes or series of the Borrower's voting stock and such aggregate
voting power exceeds the aggregate voting power of all outstanding classes or
series of Borrower's voting stock beneficially owned by the Permitted Holders
collectively, and either (a) such person or group is a Disqualified Person or
(b) on any day until the date that is six months after the date on which such
person or group becomes such beneficial owner, the Borrower is rated by one of
▇▇▇▇▇'▇ or Standard & Poor's and the rating assigned by either of them is not an
investment grade rating.
"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 2.15(b), by any lending office of such Lender or by such Lender's
holding company, if any) with any request, guideline or directive (whether or
not having the force of law) 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 Tranche A Term Loans,
Delayed Draw Term Loans or Revolving Loans.
"CLOSING DATE" means the date on which the conditions precedent set forth
in Section 4.01 shall have been satisfied (or waived in accordance with Section
9.02), which date shall be no later than three Business Days after the date
hereof.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMITMENT" means, as to any Lender at any date, the sum of the Tranche A
Term Commitment, the Delayed Draw Term Commitment and the Revolving Commitment
of such Lender at such date.
"COMMITMENT FEE RATE" means (a) prior to the first Adjustment Date
occurring after the Closing Date, 0.080% and (b) on and after the first
Adjustment Date occurring after the Closing Date, a rate determined in
accordance with the Pricing Grid; PROVIDED, FURTHER, that in computing the
Commitment Fee with respect to the Multicurrency Delayed Draw Term Commitments
or the Multicurrency Revolving Commitments, the aggregate principal amount of
the Multicurrency Delayed Draw Term Loans or Multicurrency Revolving Loans shall
be determined by using the daily average Dollar Amount thereof.
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"CONSOLIDATED EBITDA" means, for any period, operating income as reported
in the Borrower's consolidated financial statements PLUS, to the extent deducted
in calculating such operating income, (a) depreciation, (b) amortization and (c)
stock compensation, as reported in the Borrower's consolidated financial
statements.
"CONSOLIDATED LEVERAGE RATIO" means, as at any day, the ratio of (a)
Consolidated Total Debt on such day to (b) Consolidated EBITDA for the most
recent four fiscal quarter period.
"CONSOLIDATED TOTAL DEBT" means, at any date, the aggregate principal
amount of all Indebtedness of the Borrower and its Subsidiaries at such date,
determined on a consolidated basis in accordance with GAAP.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"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.
"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.
"DELAYED DRAW TERM COMMITMENT" means, as to any Lender, such Lender's
Dollar Delayed Draw Term Commitments and Multicurrency Delayed Draw Term
Commitments. The original aggregate Dollar Amount of the all Delayed Draw Term
Commitments is $1,400,000,000.
"DELAYED DRAW TERM COMMITMENT PERIOD" means the period from and including
the Closing Date to September 30, 2006.
"DELAYED DRAW TERM FEE PAYMENT DATE" means (a) the third Business Day
following the last day of each March, June, September and December during the
Delayed Draw Term Commitment Period and (b) the last day of the Delayed Draw
Term Commitment Period.
"DELAYED DRAW TERM LENDERS" means the collective reference to each Lender
that has an Delayed Draw Term Commitment or that holds an Delayed Draw Term
Loan.
"DELAYED DRAW TERM LOANS" means the definition given such term in Section
2.01.
"DELAYED DRAW TERM MATURITY DATE" means March 3, 2011.
"DELAYED DRAW TERM PERCENTAGE" means, as to any Delayed Draw Term Lender at
any time, the percentage which such Lender's Delayed Draw Term Commitment then
constitutes of the aggregate Delayed Draw Term Commitments (or, at any time
after the Delayed Draw Term Commitment Period, the percentage which the
aggregate principal amount of such Lender's Delayed Draw Term Loans then
outstanding constitutes of the aggregate principal amount of the Delayed Draw
Term Loans then outstanding).
"DISCLOSED MATTERS" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
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"DISPOSITION" means, with respect to any property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition thereof.
The terms "DISPOSE" and "DISPOSED OF" shall have correlative meanings.
"DISQUALIFIED PERSON" means a Person whose senior debt does not have an
investment grade rating with either ▇▇▇▇▇'▇ or Standard & Poor's on (a) the date
on which such Person becomes a beneficial owner of the Borrower or (b) any day
until the date that is 45 days after the date on which such Person becomes such
beneficial owner the Borrower.
"DOLLAR AMOUNT" means, at any date, (a) with respect to any Loan or
Commitment denominated in Dollars, the principal amount thereof then outstanding
and (b) with respect to any Alternative Currency Loan or Commitment, the
principal amount thereof then outstanding in the relevant Alternative Currency,
converted to Dollars at the Exchange Rate on such date.
"DOLLAR DELAYED DRAW TERM COMMITMENT" means as to any Lender, the
obligation of such Lender, if any, to make Dollar Delayed Draw Term Loans to the
Borrower in an aggregate principal amount not to exceed the amount set forth
under the heading "Dollar Delayed Draw Term Commitment" opposite such Lender's
name on Schedule 1.01A or in the Assignment and Assumption pursuant to which
such Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof.
"DOLLAR DELAYED DRAW TERM LENDER" means each Lender holding a Dollar
Delayed Draw Term Commitment or a Dollar Delayed Draw Term Loan.
"DOLLAR DELAYED DRAW TERM LOAN" has the meaning assigned to such term in
Section 2.01(b).
"DOLLAR REVOLVING COMMITMENT" means, as to any Lender, the obligation of
such Lender, if any, to make Dollar Revolving Loans in an aggregate principal
amount not to exceed the amount set forth under the heading "Dollar Revolving
Commitment" opposite such Lender's name on Schedule 1.01A or in the Assignment
and Assumption pursuant to which such Lender became a party hereto, as the same
may be changed from time to time pursuant to the terms hereof.
"DOLLAR REVOLVING LENDER" means each Lender holding a Dollar Revolving
Commitment or a Dollar Revolving Loan.
"DOLLAR REVOLVING LOANS" has the meaning assigned to such term in Section
2.03(a).
"DOLLARS" or "$" refers to lawful money of the United States of America.
"EMU" means the economic and monetary union in accordance with the Treaty
of Rome 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, the Maastricht Treaty
of 1992 and the Amsterdam Treaty of 1998.
"EMU LEGISLATION" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency.
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding 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.
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"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) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"EQUITY INTERESTS " means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants, options
or other rights entitling the holder thereof to purchase or acquire any such
equity interest.
"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 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 the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower 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 the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURO" and "EUR" mean the lawful currency of the Participating Member
States introduced in accordance with EMU Legislation.
"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 LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article VII.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE RATE" means, on any day with respect to any two currencies, the
rate at which the first such currency may be exchanged into the other such
currency, as set forth at approximately 11:00 a.m., London time, on such day on
the applicable Reuters World Spot Page. In the event that any such
6
rate does not appear on any Reuters World Spot Page, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying
exchange rates reasonably selected by the Administrative Agent or, at the
discretion of the Administrative Agent, such Exchange Rate shall instead be the
spot rate of the Administrative Agent in a market reasonably selected by it
where it customarily conducts foreign currency exchange operations at or about
11:00 a.m., London time, on such day for exchange of such first currency for
such other currency.
"EXCLUDED TAXES" means (a) in the case of each Lender and the
Administrative Agent, taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the jurisdiction under the
laws of which such Lender or the Administrative Agent, as the case may be, is
organized or any political subdivision thereof, (b) in the case of each Lender,
taxes imposed on its overall net income, and franchise taxes imposed on it in
lieu of net income taxes, by the jurisdiction of such Lender's applicable
lending office or any political subdivision thereof, (c) in the case of each
Lender and the Administrative Agent, taxes that would not be imposed but for a
present or former connection between the Lender or the Administrative Agent, as
the case may be, and the taxing jurisdiction or any political subdivision
thereof (other than any such connection arising solely from the execution,
delivery, performance or receipt of payment under this Agreement), (d) in the
case of each Lender and the Administrative Agent, taxes imposed by the United
States by means of withholding if and to the extent that such taxes shall be in
effect and shall be applicable on the date hereof to payments to be made to such
Lender's applicable lending office, (e) in the case of an assignment by a
Lender, any taxes that exceed the amount of taxes that are imposed prior to such
assignment, unless such assignment and acceptance resulted from the request of
the Borrower pursuant to Section 2.17(b), and (f) in the case of each Lender,
any tax that is attributable to such Lender's failure to comply with Section
2.15(e).
"EXISTING
CREDIT AGREEMENT" means the
Credit Agreement, dated as of May 20,
2005, among the Borrower, certain of the Lenders, the Administrative Agent, the
Syndication Agent and the Joint Lead Arrangers.
"FACILITY" means any of (a) the credit facility constituted by the Tranche
A Term Commitments and the Tranche A Term Loans (the "TRANCHE A TERM FACILITY"),
(b) the credit facility constituted by the Dollar Delayed Draw Term Commitments
and the Dollar Delayed Draw Term Loans (the "DOLLAR DELAYED DRAW TERM
FACILITY"), (c) the credit facility constituted by the Dollar Revolving
Commitments and the extensions of credit thereunder (the "DOLLAR REVOLVING
FACILITY"), (d) the credit facility constituted by the Multicurrency Delayed
Draw Term Commitments and the Multicurrency Delayed Draw Term Loans (the
"MULTICURRENCY DELAYED DRAW TERM FACILITY") and (e) the credit facility
constituted by the Multicurrency Revolving Commitments and the extensions of
credit thereunder (the "MULTICURRENCY REVOLVING FACILITY").
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the 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 1/100 of 1%) charged to the Administrative Agent on such
day on such transactions from three Federal funds brokers of recognized standing
selected by it.
"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 of
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America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United States
of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, 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.
"GUARANTEE" 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 or other similar obligation 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 other similar obligation 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 or other similar obligation 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 other similar obligation or (d) as an
account party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or similar obligation; PROVIDED, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"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.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (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 constituting
liens hereunder relating to property acquired by such Person (excluding
obligations arising from inventory transactions in the ordinary course of
business), (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), (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 on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h)
all Capital Lease Obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty and (j) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances. 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
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor. "Indebtedness"
shall not include (i) any amounts payable under any deferred compensation plans
of any Person relating to its or its subsidiaries' directors, management,
employees or consultants or (ii) any amounts owed to the Borrower or any
Subsidiary.
8
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INFORMATION MEMORANDUM" means the Confidential Information Memorandum
dated February 2006 relating to the Borrower and the Transactions.
"INTEREST ELECTION REQUEST" means a request by the Borrower to convert or
continue a Borrowing in accordance with Section 2.06.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan, the last
day of each March, June, September and December and (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
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period.
"INTEREST PERIOD" means, as to any Eurocurrency Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurocurrency Loan and ending one, two, three or six months (or,
if available to all Lenders under the relevant Facility, nine or twelve months)
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto, and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurocurrency Loan and ending one, two, three or six months
(or, if available to all Lenders under the relevant Facility, nine or twelve
months or such other, shorter period) thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not later than 12:00 noon,
New
York City time (or in the case of an Alternative Currency, the Applicable Time),
on the date that is three Business Days prior to the last day of the then
current Interest Period with respect thereto; PROVIDED that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period under a particular
Facility that would extend beyond one month after the Revolving Termination
Date or beyond one month after the date final payment is due on the Tranche
A Term Loans or Delayed Draw Term Loans, as the case may be; and
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month.
"LENDERS" means the Persons listed on Schedule 1.01A and any other Person
that shall have become a party hereto pursuant to an Assignment and Assumption,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Assumption.
"LIBO RATE" means an interest rate per annum equal to (a) with respect to
any Eurocurrency Borrowing in Dollars or an Alternative Currency for any
Interest Period, the rate appearing on Page 3740 or 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 Administrative Agent
9
from time to time for purposes of providing quotations of interest rates
applicable to deposits in such currency in the London interbank market) at
approximately 11:00 a.m., London time, on (in the case of Eurocurrency
Borrowings in Sterling), or two Business Days prior to (in the case of
Eurocurrency Borrowings in Dollars or another Alternative Currency) the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period, PROVIDED that 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 at which deposits in such currency and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, on (in the case of Eurocurrency
Borrowings in Sterling), or two Business Days prior to (in the case of
Eurocurrency Borrowings in Dollars or another Alternative Currency) the
commencement of such Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset and (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)
relating to such asset. "Lien" shall not, however, include any interest of a
vendor in any inventory of the Borrower or any of its Subsidiaries arising out
of such inventory being subject to a "sale or return" arrangement with such
vendor or any consignment by any third party of any inventory to the Borrower or
any of its Subsidiaries.
"LMC" means Liberty Media Corporation, a Delaware corporation, and any
successor (by merger, consolidation, transfer or otherwise) to all or
substantially all of its assets; and any subsequent successor (by merger,
consolidation, transfer or otherwise) to all or substantially all of a
successor's assets, provided, that if a Transferee Parent becomes the beneficial
owner of all or substantially all of the equity securities of the Borrower then
beneficially owned by LMC as to which LMC has dispositive power, the term "LMC"
shall also mean such Transferee Parent and any successor (by merger,
consolidation, transfer or otherwise) to all or substantially all of its assets.
"TRANSFEREE PARENT" for this purpose means, in the event of any transaction or
series of related transactions involving the direct or indirect transfer (or
relinquishment of control) by LMC of a Person or Persons (a "TRANSFERRED
PERSON") that hold equity securities of the Borrower beneficially owned by LMC,
such Transferred Person or its successor in such transaction or any ultimate
parent entity (within the meaning of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended) of such Transferred Person or its
successor if immediately after giving effect to such transaction or the last
transaction in such series, voting securities representing at least a majority
of the voting power of the outstanding voting securities of such Transferred
Person, successor or ultimate parent entity are beneficially owned by any
combination of LMC, Persons who prior to such transaction were beneficial owners
of a majority of, or a majority of the voting power of, the outstanding voting
securities of LMC (or of any publicly traded class or series of voting
securities of LMC designed to track the economic performance of a specified
group of assets or businesses) or Persons who are Control Persons as of the date
of such transaction or the last transaction in such series. "CONTROL PERSON" for
this purpose means each of (a) the Chairman of the Board of LMC, (b) the
President of LMC, (c) any Senior Vice President of LMC, (d) each of the
directors of LMC and (e) the respective Affiliated Persons of the Persons
referred to in clauses (a) through (d).
"LOANS" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, property or condition, financial or otherwise, of the
Borrower and its Subsidiaries that results in a material impairment of the
ability of the Borrower to perform any payment obligations hereunder and
10
(b) the validity or enforceability of this Agreement or the rights and remedies
of the Administrative Agent and the Lenders hereunder.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans), or
obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and its Subsidiaries in an aggregate principal amount exceeding
$50,000,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of the Borrower or any Subsidiary in respect of any
Swap Agreement at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Swap Agreement were terminated at such time.
"MATERIAL SUBSIDIARY" means any Subsidiary of the Borrower, as of the last
day of the fiscal quarter of the Borrower most recently ended, that has assets
or revenues (on a consolidated basis including its Subsidiaries) with a value in
excess of 1.0% of the consolidated assets of the Borrower or 1.0% of the
consolidated revenues of the Borrower; PROVIDED, that in the event Subsidiaries
that would otherwise not be Material Subsidiaries shall in the aggregate account
for a percentage in excess of 5.0% of the consolidated assets of the Borrower or
5.0% of the consolidated revenues of the Borrower as of the end of and for the
most recently completed fiscal year, then one or more of such Subsidiaries
designated by the Borrower (or, if the Borrower shall make no designation, one
or more of such Subsidiaries in descending order based on their respective
contributions to the consolidated assets of the Borrower), shall be included as
Material Subsidiaries to the extent necessary to eliminate such excess.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"MULTICURRENCY DELAYED DRAW TERM COMMITMENT" means as to any Lender, the
obligation of such Lender, if any, to make Multicurrency Delayed Draw Term Loans
to the Borrower in an aggregate principal amount not to exceed the amount set
forth under the heading "Multicurrency Delayed Draw Term Commitment" opposite
such Lender's name on Schedule 1.01A or in the Assignment and Assumption
pursuant to which such Lender became a party hereto, as the same may be changed
from time to time pursuant to the terms hereof.
"MULTICURRENCY DELAYED DRAW TERM LENDER" means a Lender holding a
Multicurrency Delayed Draw Term Commitment or a Multicurrency Delayed Draw Term
Loan.
"MULTICURRENCY DELAYED DRAW TERM LOAN" has the meaning assigned to such
term in Section 2.01(b).
"MULTICURRENCY REVOLVING COMMITMENT" means, as to any Lender, the
obligation of such Lender, if any, to make Multicurrency Revolving Loans in an
aggregate principal amount not to exceed the amount set forth under the heading
"Multicurrency Revolving Commitment" opposite such Lender's name on Schedule
1.01A or in the Assignment and Assumption pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant to the terms
hereof.
"MULTICURRENCY REVOLVING LENDER" means a Lender holding a Multicurrency
Revolving Commitment.
"MULTICURRENCY REVOLVING LOANS" has the meaning assigned to such term in
Section 2.03(a).
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
11
"NON-CONSENTING LENDER" has the meaning assigned to such term in Section
2.17(c).
"OFAC" means the U.S. Department of the Treasury's Office of Foreign Assets
Control.
"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.
"PARTICIPANT" has the meaning set forth in Section 9.04.
"PARTICIPATING MEMBER STATE" means any member state of the EMU which has
the Euro as its lawful currency.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
(g) Liens securing obligations in respect of trade-related letters of
credit and covering the goods (or the documents of title in respect of such
goods) financed or the purchase of which is supported by such letters of
credit and the proceeds and products thereof; and
(h) Liens on accounts receivable and similar assets in connection with
the Permitted Receivables Program.
"PERMITTED HOLDERS" means any one or more of (a) LMC, (b) ▇▇▇▇ ▇. ▇▇▇▇▇▇,
(c) each of the respective Affiliated Persons of the Person referred to in
clause (b) and (d) any Person a majority of the aggregate voting power of all
the outstanding classes or series of the equity securities of which are
beneficially owned by any one or more of the Persons referred to in clauses (a),
(b) or (c).
12
"PERMITTED RECEIVABLES PROGRAM" means a program under which an unrelated
third party provides revolving credit to customers of the Borrower or any
Subsidiary, with the Borrower being obligated under certain circumstances to
purchase from such third party uncollected customers' accounts.
"PERSON" and "GROUP" have the meanings given to them for purposes of
Section 13(d) and 14(d) of the Exchange Act or any successor provisions, and the
term "group" includes any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of rule 13d-5(b)(1) under the
Exchange Act, or any successor provision.
"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.
"PRICING GRID" means the table set forth below.
Consolidated Commitment Applicable Rate for Applicable Rate for
Leverage Ratio Fee Eurocurrency Loans ABR Loans
-------------- ---------- -------------------- -------------------
Greater than 3.00:1.00 0.175% 0.875% 0%
Less than or equal to 3.00:1.00 0.150% 0.750% 0%
Less than or equal to 2.50:1.00 0.125% 0.625% 0%
Less than or equal to 2.00:1.00 0.100% 0.550% 0%
Less than or equal to 1.50:1.00 0.090% 0.450% 0%
Less than or equal to 1.00:1.00 0.080% 0.350% 0%
Less than or equal to 0.50:1.00 0.070% 0.250% 0%
For the purposes of the Pricing Grid, changes in the Applicable Rate
resulting from changes in the Consolidated Leverage Ratio shall become effective
on the date (the "ADJUSTMENT DATE") on which financial statements are delivered
to the Lenders pursuant to Section 5.01 and shall remain in effect until the
next change to be effected pursuant to this paragraph. If any financial
statements referred to above are not delivered within the time periods specified
in Section 5.01, then, until the date on which such financial statements are
delivered, the highest rate set forth in each column of the Pricing Grid shall
apply. In addition, at all times while an Event of Default shall have occurred
and be continuing, the highest rate set forth in each column of the Pricing Grid
shall apply. Each determination of the Consolidated Leverage Ratio pursuant to
the Pricing Grid shall be made in a manner consistent with the determination
thereof pursuant to Section 6.10.
"PRIME RATE" means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank, N.A. 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.
"PRIORITY INDEBTEDNESS" has the meaning set forth in Section 6.01.
"REGISTER" has the meaning set forth in Section 9.04.
13
"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, the holders of more than 50% of (a)
until the Closing Date, the Commitments then in effect and (b) thereafter, the
sum of (i) the aggregate unpaid principal amount of the Term Loans then
outstanding and the aggregate amount of Available Delayed Draw Term Commitments
then in effect and (ii) the Total Revolving Commitments then in effect or, if
the Revolving Commitments have been terminated, the Total Revolving Loans then
outstanding.
"REQUIREMENT OF LAW" means, as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any Equity Interests in the
Borrower or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Equity Interests in the Borrower or any option, warrant or other right
to acquire any such Equity Interests in the Borrower.
"RESTRICTED STOCK PLANS" means restricted stock plans in connection with
which the Borrower and its Subsidiaries make payments to LMC and its Affiliates
in consideration for securities of LMC issued to employees of the Borrower and
its Subsidiaries, as provided for in the Restricted Stock Award Agreements
between LMC and employees of the Borrower and its Subsidiaries, dated November
12, 2003.
"REVOLVING COMMITMENT" means, as to any Lender, such Lender's Dollar
Revolving Commitment and Multicurrency Revolving Commitment. The original
aggregate Dollar Amount of all Revolving Commitments is $1,300,000,000.
"REVOLVING COMMITMENT PERIOD" means the period from and including the
Closing Date to the Revolving Termination Date.
"REVOLVING FEE PAYMENT DATE" means (a) the third Business Day following the
last day of each March, June, September and December during the Revolving
Commitment Period and (b) the last day of the Revolving Commitment Period.
"REVOLVING LENDER" means each Lender that has a Revolving Commitment or
that holds Revolving Loans.
"REVOLVING LOANS" has the meaning set forth in Section 2.03(a).
"REVOLVING TERMINATION DATE" means March 3, 2011.
"S&P" means Standard & Poor's.
"SECURED INDEBTEDNESS" has the meaning set forth in Section 6.01.
14
"STERLING" and "(POUND)" mean the lawful currency of the United Kingdom.
"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 by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Borrower.
"SUBSIDIARY INDEBTEDNESS" has the meaning set forth in Section 6.01.
"SWAP AGREEMENT" means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; PROVIDED that no phantom
stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Borrower or the Subsidiaries shall be a Swap Agreement.
"TAXES" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"TERM LENDERS" means the Tranche A Term Lenders and the Delayed Draw Term
Lenders.
"TERM LOANS" means the Tranche A Term Loans and the Delayed Draw Term
Loans.
"TOTAL DOLLAR DELAYED DRAW TERM COMMITMENTS" means, at any time, the
aggregate amount of the Dollar Delayed Draw Term Commitments then in effect.
"TOTAL DOLLAR DELAYED DRAW TERM LOANS" means, at any time, the aggregate
amount of the Dollar Delayed Draw Term Loans outstanding at such time.
"TOTAL DOLLAR REVOLVING COMMITMENTS" means, at any time, the aggregate
amount of the Dollar Revolving Commitments then in effect.
"TOTAL DOLLAR REVOLVING LOANS" means, at any time, the aggregate amount of
the Dollar Revolving Loans of the Dollar Revolving Lenders outstanding at such
time.
"TOTAL MULTICURRENCY DELAYED DRAW TERM COMMITMENTS" means, at any time, the
aggregate amount of the Multicurrency Delayed Draw Term Commitments then in
effect.
"TOTAL MULTICURRENCY DELAYED DRAW TERM LOANS" means, at any time, the
aggregate amount of the Multicurrency Delayed Draw Term Loans of the
Multicurrency Delayed Draw Term Lenders outstanding at such time.
15
"TOTAL MULTICURRENCY REVOLVING COMMITMENTS" means, at any time, the
aggregate amount of the Multicurrency Revolving Commitments then in effect.
"TOTAL MULTICURRENCY REVOLVING LOANS" means, at any time, the aggregate
amount of the Multicurrency Revolving Loans of the Multicurrency Revolving
Lenders outstanding at such time.
"TOTAL REVOLVING COMMITMENTS" means, at any time, the aggregate amount of
the Revolving Commitments then in effect.
"TOTAL REVOLVING LOANS" means, at any time, the aggregate amount of the
Revolving Loans of the Revolving Lenders outstanding at such time.
"TRANCHE A TERM COMMITMENT" means as to any Lender, the obligation of such
Lender, if any, to make a Tranche A Term Loan to the Borrower in a principal
amount not to exceed the amount set forth under the heading "Tranche A Term
Commitment" opposite such Lender's name on Schedule 1.01A. The original
aggregate amount of the Tranche A Term Commitments is $800,000,000.
"TRANCHE A TERM FACILITY" has the meaning set forth in the definition of
"Facility".
"TRANCHE A TERM LENDERS" means each Lender that holds a Tranche A Term
Loan.
"TRANCHE A TERM LOAN" means any Loan made pursuant to Section 2.01(a).
"TRANCHE A TERM MATURITY DATE" means March 3, 2011.
"TRANSACTIONS" means the execution, delivery and performance by the
Borrower of this Agreement, the borrowing of Loans and the use of proceeds
thereof.
"TYPE" means, as to any Loan, its nature as an ABR Loan or a Eurocurrency
Loan.
"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)" mean the lawful currency of Japan.
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 "Dollar
Revolving Loan") or by Type (E.G., a "Eurocurrency Loan") or by Class and Type
(E.G., a "Dollar Eurocurrency Revolving Loan"). Borrowings also may be
classified and referred to by Class (E.G., a "Dollar Revolving Borrowing") or by
Type (E.G., a "Dollar Eurocurrency Borrowing") or by Class and Type (E.G., a
"Dollar 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
16
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, if the Borrower notifies the Administrative Agent 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 Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such 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.
SECTION 1.05. CHANGE OF CURRENCY. Each provision of this Agreement also
shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time specify after consultation with the
Borrower to be appropriate to the extent necessary to reflect a change in
currency of any country and any relevant market conventions or practices
relating to such change in currency.
SECTION 1.06. CURRENCY EQUIVALENTS GENERALLY. Unless the context otherwise
requires, any amount specified in this Agreement to be in Dollars shall also
include the Dollar Amount of any Alternative Currency. The maximum amount of
Indebtedness and other threshold amounts that the Borrower and its Subsidiaries
may incur under Article VI shall not be deemed to be exceeded, with respect to
any outstanding Indebtedness and other threshold amounts solely as a result of
fluctuations in the exchange rate of currencies. When calculating capacity for
the incurrence of additional Indebtedness and other threshold amounts by the
Borrower and any Subsidiary, the exchange rate of currencies shall be measured
as of the date of such calculation.
ARTICLE II
THE CREDITS
SECTION 2.01. TERM COMMITMENTS. (a) Subject to the terms and conditions
hereof, each Tranche A Term Lender severally agrees to make to the Borrower on
the Closing Date term loans denominated in Dollars ("TRANCHE A TERM LOANS") in
an aggregate principal amount not to exceed the amount of the Tranche A Term
Loan Commitment of such Lender. The Tranche A Term Loans may from time to time
be Eurocurrency Loans or ABR Loans, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.02 and 2.06.
(b) Subject to the terms and conditions hereof, from time to time during
the Delayed Draw Term Commitment Period, (i) each Dollar Delayed Draw Term
Lender severally agrees to make to the Borrower term loans denominated in
Dollars ("DOLLAR DELAYED DRAW TERM LOANS") in an aggregate principal amount that
will not result in the amount of such Lender's Dollar Delayed Draw Term Loans
exceeding such Lender's Dollar Delayed Draw Term Loan Commitment and (ii) each
Multicurrency Delayed Draw Term Lender severally agrees to make to the Borrower
term loans denominated in Dollars
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or an Alternative Currency ("MULTICURRENCY DELAYED DRAW TERM LOANS"; together
with the Dollar Delayed Draw Term Loans, the "DELAYED DRAW TERM LOANS") in an
aggregate principal amount that will not result at the time of such Borrowing in
(A) the Dollar Amount of such Lender's Multicurrency Delayed Draw Term Loans
exceeding such Lender's Multicurrency Delayed Draw Term Loan Commitment and (B)
the Dollar Amount of the Multicurrency Delayed Draw Term Loans in Alternative
Currencies exceeding the Alternative Currency Delayed Draw Term Sublimit. The
Delayed Draw Term Loans may from time to time be Eurocurrency Loans or, in the
case of Dollar Delayed Draw Term Loans or Multicurrency Delayed Draw Term Loans
in Dollars, ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.02 and 2.06.
(c) Each Delayed Draw Term Loan under the Dollar Delayed Draw Term
Commitments or Multicurrency Delayed Draw Term Commitments, as the case may be,
shall be made as part of a Borrowing consisting of Delayed Draw Term Loans made
by the Lenders thereunder ratably in accordance with their respective Dollar
Delayed Draw Term Commitments or Multicurrency Delayed Draw Term Commitments, as
the case may be. The failure of any Delayed Draw Term Lender to make any Delayed
Draw Term Loan required to be made by it shall not relieve any other Delayed
Draw Term Lender of its obligations hereunder; PROVIDED that the Delayed Draw
Term Commitments of the Delayed Draw Term Lenders are several and no Delayed
Draw Term Lender shall be responsible for any other Delayed Draw Term Lender's
failure to make Delayed Draw Term Loans as required.
(d) At the commencement of each Interest Period for any Eurocurrency
Delayed Draw Term Borrowing, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $10,000,000 (or
comparable amounts determined by the Administrative Agent in the case of
Alternative Currency). At the time that each ABR Delayed Draw Term Borrowing is
made, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000; PROVIDED that an ABR
Delayed Draw Term Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the Dollar Delayed Draw Term Commitments or the
Multicurrency Delayed Draw Term Commitments, as the case may be. 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 12 Eurocurrency Delayed Draw
Term Borrowings outstanding.
SECTION 2.02. PROCEDURE FOR TERM LOAN BORROWINGS. (a) Execution and
delivery of this Agreement shall constitute notice that the Tranche A Term Loans
will be made on the Closing Date.
(b) To request the lending of Delayed Draw Term Loans during the Delayed
Draw Term Commitment Period on any Business Day, the Borrower shall give the
Administrative Agent irrevocable written notice (which notice must be received
by the Administrative Agent prior to 12:00 noon,
New York City time (or in the
case of an Alternative Currency, the Applicable Time), (x) not less than three
Business Days prior to the requested Borrowing Date, in the case of Eurocurrency
Loans, or (y) on the requested Borrowing Date, in the case of ABR Loans)
requesting that the Delayed Draw Term Lenders make Delayed Draw Term Loans and
specifying the amount (which shall equal at least $20,000,000 in the aggregate
(or comparable amounts determined by the Administrative Agent in the case of an
Alternative Currency)), Facility, currency and Type of Loans to be borrowed and
the requested Borrowing Date. Upon receipt of such notice, the Administrative
Agent shall promptly notify each relevant Delayed Draw Term Lender thereof. In
making any determination of the Dollar Amount for purposes of calculating the
amount of Delayed Draw Term Loans to be borrowed from the respective Lenders on
any date, the Administrative Agent shall use the relevant Exchange Rate in
effect on the date on which the Borrower delivers a borrowing request for such
Delayed Draw Term Loans pursuant to this provision. For the avoidance of doubt,
all Multicurrency Delayed Draw Term Loans made in Alternative Currencies shall
be Eurocurrency Loans.
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SECTION 2.03. REVOLVING COMMITMENTS. (a) Subject to the terms and
conditions hereof, from time to time during the Revolving Commitment Period, (i)
each Dollar Revolving Lender severally agrees to make to the Borrower revolving
credit loans denominated in Dollars ("DOLLAR REVOLVING LOANS") in an aggregate
principal amount that will not result in such Lender's Revolving Loans under the
Dollar Revolving Commitments exceeding such Lender's Dollar Revolving Commitment
and (ii) each Multicurrency Revolving Lender severally agrees to make to the
Borrower revolving credit loans denominated in Dollars or an Alternative
Currency ("MULTICURRENCY REVOLVING Loans"; together with the Dollar Revolving
Loans, the "REVOLVING LOANS") in an aggregate principal amount that will not
result at the time of such Borrowing in (A) the Dollar Amount of such Lender's
Revolving Loans under the Multicurrency Revolving Commitments exceeding such
Lender's Multicurrency Revolving Commitment or (B) the Dollar Amount of
Multicurrency Revolving Loans in Alternative Currencies exceeding the
Alternative Currency Revolving Sublimit. During the Revolving Commitment Period
the Borrower may use the Revolving Commitments by borrowing, prepaying the
Revolving Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. The Revolving Loans may from time to time be
Eurocurrency Loans or, in the case of Dollar Revolving Loans or Multicurrency
Revolving Loans in Dollars, ABR Loans, as determined by the Borrower and
notified to the Administrative Agent in accordance with Sections 2.04 and 2.06.
(b) Each Revolving Loan under the Dollar Revolving Commitments or
Multicurrency Revolving Commitments, as the case may be, shall be made as part
of a Borrowing consisting of Revolving Loans made by the Lenders thereunder
ratably in accordance with their respective Dollar Revolving Commitments or
Multicurrency Revolving Commitments, as the case may be. The failure of any
Revolving Lender to make any Revolving Loan required to be made by it shall not
relieve any other Revolving Lender of its obligations hereunder; PROVIDED that
the Revolving Commitments of the Revolving Lenders are several and no Revolving
Lender shall be responsible for any other Revolving Lender's failure to make
Revolving Loans as required.
(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 and not less than $10,000,000 (or comparable
amounts determined by the Administrative Agent in the case of Alternative
Currency). At the time that each ABR Revolving Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and
not less than $5,000,000; PROVIDED that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the Total Dollar
Revolving Commitments or the Total Multicurrency Revolving Commitments, as the
case may be. 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
12 Eurocurrency Revolving Borrowings outstanding.
SECTION 2.04. PROCEDURE FOR REVOLVING LOAN BORROWING. (a) To request a
Revolving Borrowing on any Business Day, the Borrower shall notify the
Administrative Agent of such request by telephone (which notice must be received
by the Administrative Agent prior to 12:00 noon,
New York City time (or in the
case of an Alternative Currency, the Applicable Time) (x) not less than three
Business Days prior to the requested Borrowing Date, in the case of Eurocurrency
Loans, or (y) on the requested Borrowing Date, in the case of ABR Loans). Each
such telephonic borrowing request shall be irrevocable and shall be confirmed
promptly in writing. Each such telephonic and written borrowing request shall
specify the amount, Facility, currency and Type of Loans to be borrowed and the
requested Borrowing Date. Upon receipt of such notice, the Administrative Agent
shall promptly notify each relevant Revolving Lender thereof. For the avoidance
of doubt, all Multicurrency Revolving Loans made in Alternative Currencies shall
be Eurocurrency Loans.
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(b) If no election as to the Type of Revolving Borrowing is specified for a
Revolving Borrowing in Dollars, then the requested Revolving Borrowing shall be
an ABR Borrowing. If no Interest Period is specified with respect to any
requested Eurocurrency Revolving Borrowing, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. If no currency is
specified, the requested Borrowing shall be in Dollars. In making any
determination of the Dollar Amount for purposes of calculating the amount of
Revolving Loans to be borrowed from the respective Lenders on any date, the
Administrative Agent shall use the relevant Exchange Rate in effect on the date
on which the Borrower delivers a borrowing request for such Revolving Loans
pursuant to the provisions of Section 2.04(a).
SECTION 2.05. 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 1:00 p.m.,
New York City time, in the case of any
Loan denominated in Dollars, and by the Applicable Time specified by the
Administrative Agent, in the case of any Loan denominated in an Alternative
Currency, to the account of the Administrative Agent most recently designated by
it for such purpose by notice to the Lenders. The Administrative Agent will make
such Loans available to the Borrower by promptly crediting the amounts so
received, in like funds, to an account of the Borrower maintained with the
Administrative Agent in
New York City.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed time of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent 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 Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent 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 Administrative Agent, at
(i) in the case of such Lender, a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation in the relevant
currency or (ii) in the case of the Borrower, the interest rate applicable to
such Loans in the case of a Loan in Dollars or the applicable LIBO Rate in the
case of a Loan in an Alternative Currency. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06. INTEREST ELECTIONS. (a) Each Borrowing denominated in Dollars
initially shall be of the Type specified in the applicable borrowing request,
and each Eurocurrency Borrowing in Dollars or an Alternative Currency shall have
an initial Interest Period as specified in such borrowing request. Thereafter,
the Borrower may elect to convert any Borrowing denominated in Dollars of any
Class to a different Type or to continue such Borrowing as the same Type and may
elect successive Interest Periods for any Eurocurrency Borrowing in Dollars or
an Alternative Currency, all as provided in this Section. The Borrower may elect
different Types or Interest Periods, as applicable, with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the relevant Lenders holding the Loans comprising the
relevant portion of such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall notify
the Administrative Agent of such election by telephone by the time that a
request for a Revolving Borrowing would be required under Section 2.04, if the
Borrower were requesting a Borrowing of the Type resulting from such election to
be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly in
writing.
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(c) Each telephonic and written Interest Election Request shall specify (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 a Borrowing denominated in Dollars, whether the resulting
Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing, and (iv) 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
Administrative Agent shall advise each relevant 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 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 continued as such for an
Interest Period of one month. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Borrowing in Dollars may
be converted to or continued as a Eurocurrency Borrowing and (ii) unless repaid,
each Eurocurrency Borrowing denominated in Dollars shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto and (iii) each
Eurocurrency Borrowing in an Alternative Currency shall be continued as such for
an Interest Period of not more than one month.
SECTION 2.07. TERMINATION AND REDUCTION OF COMMITMENTS. (a) The Borrower
shall have the right, upon not less than three Business Days' notice to the
Administrative Agent, to terminate the Dollar Revolving Commitments or the
Multicurrency Revolving Commitments or, from time to time, to reduce the amount
of the Dollar Revolving Commitments or Multicurrency Revolving Commitments;
PROVIDED that no such termination or reduction of Dollar Revolving Commitments
or Multicurrency Revolving Commitments shall be permitted if, after giving
effect thereto and to any prepayments of the Dollar Revolving Loans or
Multicurrency Revolving Loans, as the case may be, made on the effective date
thereof, the Total Dollar Revolving Loans would exceed the Total Dollar
Revolving Commitments or the Total Multicurrency Revolving Loans would exceed
the Total Multicurrency Revolving Commitments, as the case may be. Any such
reduction shall be in an amount equal to $1,000,000, or a whole multiple
thereof, and shall reduce permanently the Dollar Revolving Commitments or the
Multicurrency Revolving Commitments, as the case may be, then in effect.
(b) The Borrower shall have the right, upon not less than three Business
Days' notice to the Administrative Agent, to terminate the Dollar Delayed Draw
Term Commitments or the Multicurrency Delayed Draw Term Commitments or, from
time to time, to reduce the amount of the Dollar Delayed Draw Term Commitments
or the Multicurrency Delayed Draw Term Commitments PROVIDED that no such
termination or reduction of Dollar Delayed Draw Term Commitments or
Multicurrency Delayed Draw Term Commitments shall be permitted if, after giving
effect thereto and to any prepayments of the Dollar Delayed Draw Term Loans or
Multicurrency Delayed Draw Term Loans, as the case may be, made on the effective
date thereof, the Total Dollar Delayed Draw Term Loans would exceed the Total
Dollar Delayed Draw Term Commitments or the Total Multicurrency Delayed Draw
Term Loans would exceed the Total Multicurrency Delayed Draw Term Commitments,
as the case may
21
be. Any such reduction shall be in an amount equal to $1,000,000, or a whole
multiple thereof, and shall reduce permanently the Dollar Delayed Draw Term
Commitments or Multicurrency Delayed Draw Term Commitments, as applicable, then
in effect.
SECTION 2.08. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The Borrower shall
repay all outstanding Tranche A Term Loans on the Tranche A Term Maturity Date.
(b) The Borrower shall repay all outstanding Delayed Draw Term Loans on the
Delayed Draw Term Maturity Date.
(c) The Borrower shall repay the then unpaid principal amount of each
Revolving Loan on the Revolving Termination Date.
(d) 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.
(e) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the currency, 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 Administrative Agent hereunder for the account of the relevant Lenders and
each relevant Lender's share thereof.
(f) The entries made in the accounts maintained pursuant to paragraph (d)
or (e) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
SECTION 2.09. PREPAYMENTS. (a) The Borrower may at any time and from time
to time prepay Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Administrative Agent no later than 12:00
noon,
New York City time (or in the case of an Alternative Currency, the
Applicable Time), not less than three Business Days prior thereto, in the case
of Eurocurrency Loans, and no later than 12:00 noon,
New York City time, on the
date of such notice, in the case of ABR Loans, which notice shall specify the
date and amount of prepayment and the Loans to be prepaid; PROVIDED, that if a
Eurocurrency Loan is prepaid on any day other than the last day of the Interest
Period applicable thereto, the Borrower shall also pay any amounts owing
pursuant to Section 2.14. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of Revolving Loans that are
ABR Loans) accrued interest to such date on the amount prepaid. Partial
prepayments of Eurocurrency Loans shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $10,000,000 (or comparable
amounts determined by the Administrative Agent in the case of Alternative
Currency), and partial prepayments of ABR Loans shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $5,000,000.
Optional prepayments of Term Loans may not be reborrowed.
(b) If on the last day of any fiscal quarter of the Borrower for any reason
the sum of the Dollar Amount of Total Multicurrency Revolving Loans exceeds the
Total Multicurrency Revolving Commitments by more than 5%, the Borrower shall
upon learning thereof, or upon the request of the
22
Administrative Agent, immediately prepay the Multicurrency Revolving Loans in an
aggregate principal amount at least equal to the amount of such excess.
(c) If on the last day of any fiscal quarter of the Borrower for any reason
the sum of the Dollar Amount of Total Multicurrency Delayed Draw Term Loans
exceeds the Total Multicurrency Delayed Draw Term Commitments (or, if the
Multicurrency Delayed Draw Term Commitments have terminated, the Total
Multicurrency Delayed Draw Term Commitments in effect immediately prior to such
termination) by more than 5%, the Borrower shall upon learning thereof, or upon
the request of the Administrative Agent, immediately prepay the Dollar Delayed
Draw Loans or Multicurrency Delayed Draw Term Loans, as applicable, in an
aggregate principal amount at least equal to the amount of such excess.
SECTION 2.10. FEES. (a) The Borrower agrees to pay to the Administrative
Agent for the account of each Revolving Lender a commitment fee in dollars for
the period from and including the Closing Date to the last day of the Revolving
Commitment Period, computed at the applicable Commitment Fee Rate on the average
daily amount of the Available Revolving Commitment of such Lender during the
period for which payment is made, payable quarterly in arrears on each Revolving
Fee Payment Date, commencing on the first such date to occur after the date
hereof.
(b) The Borrower agrees to pay to the Administrative Agent for the account
of each Delayed Draw Term Lender a commitment fee for the period from and
including the Closing Date to the last day of the Delayed Draw Term Commitment
Period, computed at the applicable Commitment Fee Rate on the average daily
amount of the Available Delayed Draw Term Commitment of such Lender during the
period for which payment is made, payable quarterly in arrears on each Delayed
Draw Term Fee Payment Date, commencing on the first such date to occur after the
date hereof.
(c) The Borrower agrees to pay to the Administrative Agent the fees in the
amounts and on the dates as set forth in any fee agreements with the
Administrative Agent and to perform any other obligations contained therein.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of commitment fees, to the Lenders. Fees paid shall not be refundable
under any circumstances. All per annum fees shall be computed on the basis of a
year of 365/366 days for actual days elapsed; PROVIDED that, commitment fees
shall be computed on the basis of a year of 360 days.
SECTION 2.11. INTEREST. (a) The Loans comprising each ABR Borrowing shall
bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurocurrency Borrowing in any currency shall
bear interest at the LIBO Rate for such currency for the Interest Period in
effect for such Borrowing plus the Applicable Rate.
(c) 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 in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section (in the
case of such other amount in Dollars) or 2% plus the daily weighted average rate
of all Loans in the relevant Alternative Currency (in the case of any such other
amount in such Alternative Currency).
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(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in addition, in the case of Revolving
Loans, upon termination of the Commitments; PROVIDED that (i) interest accrued
pursuant to paragraph (c) 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 Revolving Commitment Period),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurocurrency 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.
(e) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate and Eurocurrency
Loans in Sterling shall be computed on the basis of a year of 365 days (or 366
days in a leap 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 or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.12. ALTERNATE RATE OF INTEREST. If prior to the commencement of
any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the
LIBO Rate for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent 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 Borrowing to, or
continuation of any Borrowing in Dollars as, a Eurocurrency Borrowing shall be
ineffective and the Loans shall be converted to an ABR Borrowing and (ii) if any
Borrowing Request requests a Eurocurrency Borrowing, such Borrowing, if
denominated in Dollars, shall be made as an ABR Borrowing, and if such borrowing
request requests a Borrowing denominated in an Alternative Currency or if any
Interest Election Request requests the continuation of a Eurocurrency Borrowing
in an Alternate Currency, such Borrowing or continuation shall be made or
continued as a Borrowing bearing interest at an interest rate reasonably
determined by the Administrative Agent, after consultation with the Borrower and
the applicable Lenders, to compensate the applicable Lenders for such Borrowing
in such currency for the applicable period plus the Applicable Rate; provided
that if the circumstances giving rise to such notice affect only Borrowings in
one currency, then Borrowings in other currencies will not be affected by the
provisions of this Section.
SECTION 2.13. 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 (including any reserve for eurocurrency
funding that may be established or reestablished under Regulation D of the
Board); or
24
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurocurrency Loans made by such
Lender;
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 reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.
(b) If any Lender 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 capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts necessary
to compensate such Lender 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 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 to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; PROVIDED that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender'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 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.14. 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 Eurocurrency Loan on the date specified in any notice delivered
pursuant hereto 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 2.17, 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, such loss, cost or expense to any
Lender shall be deemed to be an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the LIBO Rate that
would have been applicable to such Loan, for the period from the date of such
event to the last day of the then current Interest Period therefor (or, in the
case of a failure to borrow, convert or continue, for the period that would have
been the Interest Period for such Loan), over (ii) the amount of interest which
would accrue on such principal amount for such period at the interest rate which
such Lender would bid were it to bid, at the commencement of such period, for
deposits in the relevant currency of a comparable amount and period from other
banks in the eurocurrency market (but not less than the available LIBO rate
quoted for the LIBO interest period equal to the period from the date of such
event to the last day of the then current
25
Interest Period, or if there is no such LIBO interest period, the lower of the
LIBO rates quoted for the closest LIBO interest periods that are longer and
shorter than 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 2.15. 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 Administrative Agent or Lender
(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 Administrative Agent and each Lender,
within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto (excluding penalties and interest attributable to
actions or omissions of the Administrative Agent or such Lender), whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error. The Borrower shall be entitled to contest with
the relevant Governmental Authority, pursuant to applicable law and at its own
expense, any Indemnified Taxes or Other Taxes that it is ultimately obligated to
pay, and the Administrative Agent or Lender shall reasonably cooperate with any
such contest. This Section shall not be construed to require the Administrative
Agent or Lender to make available its tax returns (or any other information
relating to its taxes which it deems confidential) to the Borrower or any other
Person. The Administrative Agent and each Lender shall give prompt notice of any
Indemnified Taxes or Other Taxes imposed or asserted on it, PROVIDED HOWEVER
that the Administrative Agent or such Lender's failure to give such prompt
notice to the Borrower shall not constitute a defense to any claim for
indemnification by the Administrative Agent's or such Lender unless, and only to
the extent that, such failure materially prejudices the Borrower.
(d) 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 Administrative Agent a copy, or if reasonably available to the Borrower 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 Administrative Agent.
(e) 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
any payments under this Agreement shall deliver to the Borrower (with a copy to
the Administrative Agent), at the time or times prescribed by applicable law,
26
such properly completed and executed documentation prescribed by applicable law
or reasonably requested by the Borrower or the Administrative Agent as will
permit such payments to be made without withholding or at a reduced rate. In
addition, any Lender, if reasonably requested by the Borrower or the
Administrative Agent, shall deliver such other documentation (including without
limitation, Internal Revenue Service documentation such as a W8BEN or a W8ECI
tax form) reasonably requested by the Borrower or the Administrative Agent to
determine whether such Lender is subject to withholding or information reporting
requirements.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of or credit against any 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 2.15,
it shall pay over such refund or credit to the Borrower (but only to the extent
of indemnity payments made, or additional amounts paid, by the Borrower under
this Section 2.15 with respect to the Taxes or Other Taxes giving rise to such
refund or credit, and, with respect to a credit, only to the extent that such
credit actually reduces the Taxes otherwise payable by such Lender or
Administrative Agent for any completed year, with the determination of the
extent to which such credit actually reduces the Taxes otherwise payable by such
Lender or Administrative Agent to be made in the reasonable determination of
such Administrative Agent or Lender), net of all reasonable out-of-pocket
expenses of the Administrative Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund or credit); PROVIDED, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority (but excluding any penalties, interest or other charges
attributable to actions or omissions of the Administrative Agent or such
Lender)) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund or credit
to such Governmental Authority. The Administrative Agent and each Lender will
pursue any such refund or credit against Taxes or Other Taxes if the
Administrative Agent or such Lender reasonably determines that it is likely to
receive such refund or credit. This Section shall not be construed to require
the Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to the
Borrower or any other Person.
SECTION 2.16. PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee and any reduction of the Commitments of the Lenders under any
Facility shall be made PRO RATA according to the respective Commitment of such
Facility then held by the relevant Lenders under such Facility.
(b) Each payment (including each prepayment) by the Borrower on account of
principal of and interest (i) on the Tranche A Term Loans shall be made PRO RATA
according to the respective outstanding principal amounts of the Tranche A Term
Loans then held by the Tranche A Term Lenders, (ii) on the Dollar Delayed Draw
Term Loans shall be made PRO RATA according to the respective outstanding
principal amounts of the Dollar Delayed Draw Term Loans then held by the Dollar
Delayed Draw Term Lenders and (iii) on the Multicurrency Delayed Draw Term Loans
shall be made PRO RATA according to the respective outstanding principal amounts
of the Multicurrency Delayed Draw Term Loans then held by the Multicurrency
Delayed Draw Term Lenders. Amounts prepaid on account of the Term Loans may not
be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of
principal of and interest (i) on the Dollar Revolving Loans shall be made PRO
RATA according to the respective outstanding principal amounts of the Dollar
Revolving Loans then held by the Dollar Revolving Lenders and (ii) on the
Multicurrency Revolving Loans shall be made PRO RATA according to the
27
respective outstanding principal amounts of the Multicurrency Revolving Loans
then held by the Multicurrency Revolving Lenders.
(d) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 noon,
New York City time (or as specified in the next sentence in the case of Loans in
an Alternative Currency), on the date when due. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder with respect to
principal and interest on Loans in an Alternative Currency shall be made on the
dates specified herein for the pro rata account of the relevant Lenders to which
such payment is owed, in such Alternative Currency and in immediately available
funds not later than the Applicable Time specified by the Administrative Agent
to the Borrower by the same time at least one Business Day prior to the date
when due. All payments received by the Administrative Agent (i) after 12:00
noon, New York City time, in the case of payments in Dollars, or (ii) after the
Applicable Time specified by the Administrative Agent in the case of payments in
an Alternative Currency, may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇,
except that payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03 shall be
made directly to the Persons entitled thereto. The Administrative Agent shall
distribute such payments to the relevant Lenders promptly upon receipt in like
funds as received. If any payment hereunder becomes due and payable on a day
other than a Business Day, such payment shall be extended to the next succeeding
Business Day. In the case of any extension of any payment of principal, interest
thereon shall be payable at the then applicable rate during such extension.
(e) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, interest and fees
then due hereunder, such funds shall be applied (i) first, towards payment of
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, towards payment of principal then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal then
due to such parties. To the extent necessary, the Administrative Agent shall
enter into foreign currency exchange transactions on customary terms to effect
any such ratable payment and the payments made by the Administrative Agent
following such transactions shall be deemed to be payments made by or on behalf
of the Borrower hereunder.
(f) If any Lender shall, by exercising any right of set-off or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Loans resulting in such Lender receiving payment of a greater proportion
of the aggregate amount of its 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 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 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 to any assignee or participant.
SECTION 2.17. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If any
Lender requests compensation under Section 2.13, 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 2.15, then
28
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 2.13 or 2.15, 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 2.13, 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 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, 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 Administrative Agent, 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, 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 2.13 or payments required to be made pursuant to Section 2.15, 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.
(c) If any Lender (such Lender, a "NON-CONSENTING LENDER") has failed to
consent to a proposed amendment, waiver, discharge or termination which pursuant
to the terms of Section 9.02 requires the consent of all of the Lenders affected
and with respect to which the Required Lenders shall have granted their consent,
then the Borrower shall have the right (unless such Non-Consenting Lender grants
such consent) to replace such Non-Consenting Lender by requiring such
Non-Consenting Lender to assign its Loans, and its Commitments hereunder to one
or more assignees reasonably acceptable to the Administrative Agent, PROVIDED
that: (a) all amounts owing to such Non-Consenting Lender being replaced (other
than principal and interest) shall be paid in full to such Non-Consenting Lender
concurrently with such assignment, and (b) the replacement Lender shall purchase
the foregoing by paying to such Non-Consenting Lender a price equal to the
principal amount thereof plus accrued and unpaid interest thereon. In connection
with any such assignment the Borrower, Administrative Agent, such Non-Consenting
Lender and the replacement Lender shall otherwise comply with Section 9.04.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Borrower and its Material
Subsidiaries 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, would 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.
29
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions (excluding
use of proceeds) are within the Borrower's corporate powers and have been duly
authorized by all necessary corporate and, if required, stockholder action. This
Agreement has been duly executed and delivered by the Borrower and constitutes a
legal, valid and binding obligation of the Borrower, 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
(excluding use of proceeds) (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 any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or any of its Material
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 Material 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 Material Subsidiaries, and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Material
Subsidiaries.
SECTION 3.04. FINANCIAL POSITION. The Borrower has heretofore furnished to
the Lenders its consolidated balance sheet and statements of income,
stockholders' equity and cash flows as of and for (A) the fiscal years ended
December 31, 2004 and 2003 reported on by KPMG, independent public accountants
and (B) the nine months ended September 30, 2005. Such financial statements
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 dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (B) above.
SECTION 3.05. PROPERTIES. (a) Each of the Borrower and its Material
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes or
as, individually or in the aggregate, would not reasonably be expected to result
in a Material Adverse Effect.
(b) Each of the Borrower and its Material Subsidiaries owns, or is licensed
to use, all trademarks, tradenames, copyrights, patents and other intellectual
property used by such entities, and the use thereof by the Borrower and its
Material Subsidiaries does not infringe upon the rights of any other Person,
except for any such intellectual property or 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 or proceedings (including labor matters) 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) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, would reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve this Agreement or the
Transactions (excluding use of proceeds).
(b) Except for the Disclosed Matters and except with respect to any other
matters that, individually or in the aggregate, would not reasonably be expected
to result in a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (i) has failed to comply with any Environmental
30
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, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or would reasonably be expected to result in, a Material Adverse
Effect.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the Borrower and
its Material Subsidiaries is in compliance with all laws, regulations and orders
(including labor laws, regulations and orders) of any Governmental Authority
applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to do so,
individually or in the aggregate, would not reasonably be expected to result in
a Material Adverse Effect. No Default has occurred and is continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. 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 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of the Borrower and its Material 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 Material Subsidiary,
as applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so would 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, would reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such Plan by an amount which, if it were to become
due, would cause a Material Adverse Effect, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed the fair market value of the assets of all such underfunded
Plans by an amount which, if it were to become due, would cause a Material
Adverse Effect.
SECTION 3.11. DISCLOSURE. To the best of the Borrower's knowledge, as of
the Closing Date, neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished by or
on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished), taken as a whole,
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; PROVIDED that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
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ARTICLE IV
CONDITIONS
SECTION 4.01. CLOSING DATE. The obligations of the Lenders to make the
initial Loans 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) The Administrative Agent (or its counsel) shall have received from each
party hereto either (i) a counterpart of this Agreement signed on behalf of such
party or (ii) written evidence satisfactory to the Administrative Agent (which
may include telecopy transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Closing Date) of each of (i) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C., special counsel for the
Borrower, substantially in the form of Exhibit B-1, and (ii) ▇▇▇▇ ▇▇▇▇▇▇▇,
General Counsel of the Borrower, substantially in the form of Exhibit B-2. The
Borrower hereby requests each such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Borrower, the
authorization of the Transactions (excluding use of proceeds) and any other
legal matters relating to the Borrower, this Agreement or the Transactions
(excluding use of proceeds), all in form and substance reasonably satisfactory
to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the
Closing Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.
(e) The loans outstanding under the Existing
Credit Agreement, and accrued
interest thereon and accrued commitment fees under the Existing
Credit Agreement
and all related amounts, shall have been paid in full (or instructions shall
have been given to the Administrative Agent to make payment thereof in full with
the proceeds of the initial Loans hereunder) and the commitments under the
Existing
Credit Agreement shall have been terminated (or arrangement reasonably
satisfactory to the Administrative Agent shall have been made for the
termination on the Closing Date).
(f) The Administrative Agent shall have received all fees and other amounts
due and payable on or prior to the Closing Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrower hereunder.
(g) Since December 31, 2004, there has been no event that has had or would
reasonably be expected to have a Material Adverse Effect.
The Administrative Agent shall notify the Borrower and the Lenders of the
Closing Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans 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 March
8, 2006 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
32
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to make a
Loan on the occasion of any Borrowing (other than a continuation or conversion
of an existing Borrowing) is subject to the satisfaction of the following
conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement shall be true and correct on and as of the date of such
Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the 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 and all fees payable hereunder shall have been paid in
full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS; OTHER INFORMATION. The Borrower will
furnish to the Administrative Agent and each Lender:
(a) within 120 days after the end of each fiscal year of the Borrower
(including 2005), its audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by KPMG 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 position and results of
operations of the Borrower and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal quarters
of each fiscal year of the Borrower, its consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows 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 its Financial Officers as
presenting fairly in all material respects the financial position 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;
(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(b) and 6.10 and (iii) stating
whether any change in GAAP or in the application thereof that materially affects
such financial statements 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;
33
(d) concurrently with any delivery of financial statements under clause (a)
above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may
be limited to the extent required by accounting rules or guidelines);
(e) 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 Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, as the case may be; and
(f) promptly following any reasonable request therefor, such other
information regarding the operations, business affairs and financial position of
the Borrower or any Subsidiary, or compliance with the terms of this Agreement,
as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Borrower will furnish to the
Administrative Agent for delivery to each Lender prompt written notice of the
following:
(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 Subsidiary thereof as to which there is a reasonable
possibility of an adverse determination, that, if adversely determined,
would 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, would reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an amount which
would constitute a Material Adverse Effect; and
(d) any other development that results in, or would 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 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 6.03.
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, would reasonably be expected to result in a Material Adverse
Effect before the same shall become 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 would not reasonably be expected to
result in a Material Adverse Effect.
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SECTION 5.05. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will, and
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies or in accordance with acceptable self insurance
practices, insurance in such amounts and against such risks as are customarily
maintained by companies of similar size engaged in the same or similar
businesses operating in the same or similar locations.
SECTION 5.06. BOOKS AND RECORDS; INSPECTION RIGHTS. The Borrower will, and
will cause each of its 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 Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender to visit and inspect its properties, to
examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and independent accountants,
PROVIDED that such visits, inspections, examinations and discussions shall, so
long as no Default or Event of Default has occurred and is continuing, take
place no more often than one time per fiscal quarter on a date to be determined
by, and shall be coordinated by, the Borrower and the Administrative Agent.
SECTION 5.07. COMPLIANCE WITH LAWS. The Borrower will, and will cause each
of its 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, would 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
to (a) make Restricted Payments and loans to LMC and its subsidiaries and (b)
finance the working capital needs and general corporate purposes of the Borrower
and its Subsidiaries. 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 T, U and X.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full, the
Borrower covenants and agrees with the Lenders that:
SECTION 6.01. INDEBTEDNESS. (a) The Borrower will not create, incur, assume
or permit to exist any unsecured Indebtedness of the Borrower unless after
giving effect to such unsecured Indebtedness, (i) no Default shall have occurred
and be continuing and (ii) the Borrower shall be in compliance with Section 6.10
hereof on a PRO FORMA basis reflecting such unsecured Indebtedness and (b) the
Borrower will not create, incur, assume or permit to exist any secured
Indebtedness of the Borrower ("SECURED INDEBTEDNESS"), and will not permit any
Subsidiary to create, incur, assume or permit to exist any Indebtedness of such
Subsidiary (whether secured or unsecured) ("SUBSIDIARY INDEBTEDNESS," and
together with Secured Indebtedness, "PRIORITY INDEBTEDNESS"), except Priority
Indebtedness in an aggregate outstanding principal amount not to exceed, at the
time of and after giving effect to such creation, incurrence or assumption, 50%
of the Consolidated EBITDA of the Borrower for the most recently completed four
fiscal quarter period (to be calculated at the time or each such creation,
incurrence or assumption), PROVIDED that after giving effect to such Priority
Indebtedness, (i) no Default shall have occurred and be continuing and (ii) the
Borrower shall be in compliance with Section 6.10 hereof on a PRO FORMA basis
reflecting such Priority Indebtedness.
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SECTION 6.02. LIENS. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Subsidiary
existing on the date hereof and set forth in Schedule 6.02; PROVIDED that (i)
such Lien shall not apply to any other property or asset of the Borrower or any
Subsidiary and (ii) such Lien shall secure only those obligations which it
secures on the date hereof;
(c) 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
(d) Liens on any property or asset of the Borrower or any Subsidiary
securing Priority Indebtedness permitted by Section 6.01(b).
SECTION 6.03. FUNDAMENTAL CHANGES. (a) The Borrower will not, and will not
permit any Subsidiary to, merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it, or Dispose of (in
one transaction or in a series of transactions) all or substantially all of its
assets, or all or substantially all of the stock of any of its Subsidiaries (in
each case, whether now owned or hereafter acquired), or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing (i) any Person may merge into
the Borrower in a transaction in which the Borrower is the surviving
corporation, (ii) any Person may merge or consolidate with or into any
Subsidiary in a transaction in which the surviving entity is a Subsidiary or
which is permitted as a Disposition under Section 6.04, (iii) any Subsidiary may
Dispose of its assets and the Borrower or any Subsidiary may Dispose of any
stock of any of its Subsidiaries to the Borrower or to another Subsidiary or in
a transaction which is permitted as a Disposition under Section 6.04 and (iv)
any Subsidiary may liquidate or dissolve if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders; PROVIDED that any
such merger which is in the nature of a sale of a Person that is not a wholly
owned Subsidiary immediately prior to such merger shall not be permitted unless
also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
change its line of business from the lines of business conducted by the Borrower
and its Subsidiaries on the date of execution of this Agreement (other than
businesses incidental or related thereto).
SECTION 6.04. DISPOSITION OF PROPERTY. The Borrower will not, and will not
permit any of its Subsidiaries to, Dispose of any of its property, whether now
owned or hereafter acquired other than inventory and obsolete or worn out
property in the ordinary course of business and accounts receivable in
connection with the collection thereof, or, in the case of any Subsidiary, issue
or sell any shares of such Subsidiary's capital stock to any Person, unless at
the time of a Disposition (or, if earlier, the date of the commitment to make
such Disposition) and after giving effect thereto and to the use of the
36
proceeds thereof, no Default shall have occurred and be continuing on a PRO
FORMA basis reflecting such Disposition.
SECTION 6.05. RESTRICTED PAYMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except (a) the Borrower may
declare and pay dividends with respect to its Equity Interests payable solely in
additional shares of its common stock, (b) Subsidiaries may declare and pay
dividends ratably with respect to their Equity Interests, (c) the Borrower may
declare, make, agree to pay and agree to make Restricted Payments pursuant to
and in accordance with stock option plans or other benefit plans for directors,
management, employees or consultants of the Borrower and its Subsidiaries and
(d) the Borrower may make Restricted Payments to LMC or its subsidiaries to pay
any taxes that are due and payable by the Borrower and its Subsidiaries to LMC
or its subsidiaries in accordance with the Tax Liability Allocation and
Indemnification Agreement between the Borrower and LMC. Notwithstanding the
foregoing, the Borrower and its Subsidiaries shall be permitted to declare and
make and agree to pay and pay a Restricted Payment, PROVIDED that after giving
effect to such Restricted Payment, (i) no Default shall have occurred and be
continuing and (ii) the Borrower shall be in compliance with Section 6.10 on a
PRO FORMA basis.
SECTION 6.06. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions (including amendments
or modifications to prior or existing transactions) with, any of its Affiliates,
except (a) for transactions 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, (b) transactions between or
among the Borrower and its wholly owned Subsidiaries not involving any other
Affiliate, (c) pursuant to existing Restricted Stock Plans, and (d) any
Restricted Payment permitted by Section 6.05.
SECTION 6.07. CHANGES IN FISCAL PERIODS. The Borrower will not, and will
not permit any of its Subsidiaries to, change its fiscal year to end on a day
other than December 31 or change its method of determining fiscal quarters.
SECTION 6.08. SALES AND LEASEBACKS. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any arrangement with any Person
providing for the leasing by the Borrower or any Subsidiary of real or personal
property that has been or is to be sold or transferred by the Borrower or any
Subsidiary to such Person or to any other Person to whom funds have been or are
to be advanced by such Person on the security of such property or rental
obligations of the Borrower or any Subsidiary unless (i) the lease in such
arrangement is a capital lease and such capital lease may be entered into at
such time pursuant to Section 6.01 or (ii) the lease in such arrangement is not
a capital lease and the aggregate proceeds from such arrangement and other such
arrangements since the date hereof do not exceed $100,000,000.
SECTION 6.09. CLAUSES RESTRICTING SUBSIDIARY DISTRIBUTIONS. The Borrower
will not, and will not permit any of its Subsidiaries to, enter into or suffer
to exist or become effective any consensual encumbrance or restriction on the
ability of any Subsidiary to (a) make Restricted Payments in respect of any
capital stock of such Subsidiary held by, or pay any Indebtedness owed to, the
Borrower or any other Subsidiary, (b) make loans or advances to, or other
investments in, the Borrower or any other Subsidiary or (c) transfer any of its
assets to the Borrower or any other Subsidiary, except for such encumbrances or
restrictions existing under or by reason of (i) any restrictions existing under
this Agreement, (ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement that has
37
been entered into in connection with the Disposition of all or substantially all
of the capital stock or assets of such Subsidiary and (iii) the restrictions set
forth on Schedule 6.09.
SECTION 6.10. CONSOLIDATED LEVERAGE RATIO. The Borrower will not permit the
Consolidated Leverage Ratio as at any day to be more than 4.00 to 1.00.
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 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
three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in this Agreement or any amendment or
modification hereof or waiver hereunder, or in any certificate or in or as
to any financial statements furnished pursuant to this Agreement or any
amendment or modification hereof or waiver hereunder, 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, 5.03 (with respect to the
Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b), (c) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
(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;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice) 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 Borrower or any
38
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 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 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
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) 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 Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower or any
Subsidiary to enforce any such judgment;
(k) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, would reasonably be expected to result in a Material Adverse
Effect; or
(l) 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 Administrative Agent 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 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 during the continuation of such event), 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, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind (other than notice from
the Administrative Agent), 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, 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.
39
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. APPOINTMENT AND AUTHORIZATION. Each of the Lenders hereby
irrevocably appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof,
together with such actions and powers as are reasonably incidental thereto.
SECTION 8.02. ADMINISTRATIVE AGENT AND AFFILIATES. The bank serving as the
Administrative 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 the Administrative Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower or any Subsidiary or other Affiliate thereof as if it were not the
Administrative Agent hereunder.
SECTION 8.03. ACTION BY ADMINISTRATIVE AGENT. The Administrative Agent
shall not have any duties or obligations except those expressly set forth
herein. Without limiting the generality of the foregoing, (a) the Administrative
Agent shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default has occurred and is continuing, (b) the Administrative
Agent 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 Administrative Agent is required to exercise in
writing as directed by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), and (c) except as expressly set forth herein, the Administrative
Agent 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
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent 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 such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or otherwise, in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent 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, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement 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 Administrative Agent.
SECTION 8.04. CONSULTATION WITH EXPERTS. The Administrative Agent 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 the
proper Person. The Administrative Agent 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. The Administrative Agent
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.
40
SECTION 8.05. DELEGATION OF DUTIES. The Administrative Agent 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 Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all its 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 Administrative Agent 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
Administrative Agent.
SECTION 8.06. SUCCESSOR ADMINISTRATIVE AGENT. Subject to the appointment
and acceptance of a successor Administrative Agent as provided in this
paragraph, the Administrative Agent 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. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent 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 Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
SECTION 8.07. CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative 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
the Administrative 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.
SECTION 8.08. THE ARRANGERS; THE SYNDICATION AGENT. Notwithstanding
anything to the contrary herein, none of the Joint Lead Arrangers or the
Syndication Agent shall have any powers, duties or responsibilities under the
Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent or a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. (a) All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy) (unless otherwise specifically permitted in this Agreement), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered, or three Business Days after being deposited in
the mail, postage prepaid, or, in the case of telecopy or telephone notice, when
received, addressed as follows in the case of the Borrower (with a copy to LMC)
and the Administrative Agent, and as set forth
41
in an administrative questionnaire delivered to the Administrative Agent in the
case of the Lenders, or to such other address as may be hereafter notified by
the respective parties hereto:
Borrower: QVC, Inc.
Studio Park, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: QVC, Inc.
Studio Park, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and: Liberty Media Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President, Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Administrative Agent: JPMorgan Chase Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: JPMorgan Chase Bank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Notices, financial statements and similar deliveries and other
communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative
Agent (including by posting on Intralinks); PROVIDED that the foregoing shall
not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, PROVIDED that approval of such procedures may be
limited to particular notices or communications.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by the
Administrative Agent 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
42
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 Administrative Agent 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 shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent 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
Administrative Agent with the consent of the Required Lenders; PROVIDED that no
such agreement shall (i) increase the Dollar Revolving Commitment, Multicurrency
Revolving Commitment, Dollar Delayed Draw Term Commitment, Multicurrency Delayed
Draw Term Commitment or Tranche A Term 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 directly 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 directly affected
thereby, (iv) change Section 2.16 in a manner that would alter the pro rata
distribution or sharing of payments required thereby or any provision requiring
the pro rata funding of Loans, without the written consent of each Lender, or
(v) 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 Administrative Agent hereunder
without the prior written consent of the Administrative Agent.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The Borrower shall
pay (i) all reasonable out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the
administration of this Agreement or any amendments, modifications or waivers of
the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated) and (ii) all reasonable out-of-pocket expenses
incurred by the Administrative Agent or any Lender, including the fees, charges
and disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in connection with
the Loans made hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent 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 this Agreement or any
agreement or instrument contemplated hereby, 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 the
use of the proceeds therefrom, (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
43
Liability related in any way to the Borrower or any of its Subsidiaries, (iv)
any civil penalty or fine assessed by OFAC against, and all reasonable costs and
expenses (including counsel fees and disbursements) incurred in connection with
defense thereof, by the Administrative Agent or any Lender as a result of
conduct of the Borrower that violates a sanction enforced by OFAC or (v) 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 (i) are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee or
(ii) arise from a breach of this Agreement by such Indemnitee. Each Indemnitee
shall give prompt notice to the Borrower of any claim that may give rise to a
claim against the Borrower hereunder and shall consult with the Borrower in the
conduct of such Indemnitee's legal defense of such claim; PROVIDED, HOWEVER,
than an Indemnitee's failure to give such prompt notice to the Borrower or to
seek such consultation with the Borrower shall not constitute a defense to any
claim for indemnification by such Indemnitee unless, and only to the extent
that, such failure materially prejudices the Borrower.
(c) To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent 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 Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the parties shall not
assert, and each hereby waives, any claim against any other party, 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 and assigns permitted hereby, except that (i) the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section. 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,
Participants (to the extent provided in paragraph (c) of this Section) and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any
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 Commitments
and the Loans at the time owing to it) with the prior written consent of:
(A) the Borrower (such consent not to be unreasonably withheld, except
for certain institutions (and affiliates of such institutions) previously
identified by the Borrower to the
44
Administrative Agent (the "RESTRICTED LIST"), the identities of which are
available to the Lenders upon request to the Administrative Agent),
PROVIDED that no consent of the Borrower shall be required for an
assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if
an Event of Default under clause (a), (b), (h) or (i) of Article VII has
occurred and is continuing, any other assignee (except for institutions
(and affiliates of such institutions) on the Restricted List), and PROVIDED
FURTHER, that if the Borrower consents to an assignment to any institution
(or affiliate of such institution) on the Restricted List, such institution
shall be permanently removed from the Restricted List; and
(B) the Administrative Agent (such consent not to be unreasonably
withheld), PROVIDED that no consent of the Administrative Agent shall be
required for an assignment of any Commitment or Loan to an assignee that is
a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of
a Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment or Loans of any Class, the amount of the Commitments or
Loans of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$10,000,000 or, in the case of a Term Loan, $5,000,000 (or, in the case of
a Loan in an Alternative Currency, an appropriate corresponding amount as
shall be consented to by the Administrative Agent (such consent not to be
unreasonably withheld)), unless each of the Borrower and the Administrative
Agent otherwise consent, PROVIDED that no such consent of the Borrower
shall be required if an Event of Default under clause (a), (b), (h) or (i)
of Article VII has occurred and is continuing;
(B) 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, PROVIDED that this clause shall not be construed to
prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments or
Loans;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
For the purposes of this Section 9.04(b), the term "APPROVED FUND" means
any Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph
(b)(v) of this Section, from and after the effective date specified in each
Assignment and Assumption the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, 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 Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering
45
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be null and void.
(iv) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of the
Loans 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 Administrative Agent 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. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption with
respect to a permitted assignment 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 Administrative Agent
shall accept such Assignment and Assumption 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.
(c) (i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, 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 Commitments and the
Loans owing to it); PROVIDED that (A) such Lender's obligations under this
Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent 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 (c)(ii) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.13, 2.14 and 2.15 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
(ii) A Participant shall not be entitled to receive any greater payment
under Section 2.13 or 2.15 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 if it were a
Lender shall not be entitled to the benefits of Section 2.15 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 2.15(e) as
though it were a Lender.
(d) 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 without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section
46
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 pledgee or
assignee for such Lender as a party hereto.
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, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent 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 2.13, 2.14, 2.15 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 Administrative
Agent 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 effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent 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 and each of its Affiliates 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 obligations at any time owing
by such Lender or Affiliate 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.
47
(b) Each party hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive 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 this
Agreement, 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 may 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. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement against any other party or their
respective properties in the courts of any jurisdiction.
(c) Each party 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.
(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 TO IT,
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 Administrative Agent 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 or self-regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (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 agreement containing
provisions substantially the same as those of this Section, to (i) any assignee
of or
48
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (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 an agreement described in clause (f)
hereof or (ii) becomes available to the Administrative Agent 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 or
its Affiliates relating to the Borrower, its Subsidiaries or their businesses,
other than any such information that is available to the Administrative Agent or
any Lender on a nonconfidential basis prior to disclosure by the Borrower or its
Affiliates. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be 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 reasonably
accord to its own confidential information.
SECTION 9.13. JUDGMENT CURRENCY. If, for the purposes of obtaining judgment
or filing a claim in any court, it is necessary to convert a sum due hereunder
or claim in one currency into another currency, the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative
Agent 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 the Administrative Agent or
the Lenders hereunder 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 Administrative Agent of any sum adjudged to be so due in the
Judgment Currency, the Administrative Agent may in accordance with normal
banking procedures purchase the Agreement Currency with the Judgment Currency.
If the amount of the Agreement Currency so purchased is less than the sum
originally due to the Administrative Agent from the Borrower in the Agreement
Currency, the Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. If the amount of the Agreement Currency
so purchased is greater than the sum originally due to the Administrative Agent
in such currency, the Administrative Agent agrees to return the amount of any
excess to the Borrower (or to any other Person who may be entitled thereto under
applicable law).
SECTION 9.14. USA PATRIOT ACT. Each Lender subject to the Act hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it
is hereby required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender to identify the Borrower in
accordance with the Act.
49
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.
QVC, INC.
By
----------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and a Lender
By
----------------------------------
Name:
Title:
WACHOVIA CAPITAL MARKETS, LLC, as
Syndication Agent
By
----------------------------------
Name:
Title:
WACHOVIA BANK, N.A., as a Lender
By
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Name:
Title:
[__________________], as a Lender
By
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Name:
Title: