Exhibit 10.1
US$1,750,000,000
FIVE YEAR CREDIT AGREEMENT
Dated as of June 27, 2003
Among
NEWS AMERICA INCORPORATED
as Borrower
and
FOX ENTERTAINMENT GROUP, INC.
THE NEWS CORPORATION LIMITED
NEWS PUBLISHING AUSTRALIA LIMITED
FEG HOLDINGS, INC.
NEWS AMERICA MARKETING FSI, INC.
as Initial Guarantors
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Administrative Agent
and
JPMORGAN CHASE BANK
as Syndication Agent
and
BANK OF AMERICA, N.A.,
BNP PARIBAS
and
HSBC BANK USA
as Co-Documentation Agents
and
CITIGROUP GLOBAL MARKETS INC.
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
ARTICLE I
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 17
SECTION 1.03. Accounting Terms 17
ARTICLE II
SECTION 2.01. The Advances and Letters of Credit 18
SECTION 2.02. Making the Advances 19
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit 20
SECTION 2.04. Fees 21
SECTION 2.05. Optional Termination or Reduction of the Commitments 22
SECTION 2.06. Repayment of Advances 22
SECTION 2.07. Interest on Advances 23
SECTION 2.08. Interest Rate Determination 23
SECTION 2.09. Optional Conversion of Advances 24
SECTION 2.10. Prepayments of Advances 24
SECTION 2.11. Increased Costs 25
SECTION 2.12. Illegality 26
SECTION 2.13. Payments and Computations 27
SECTION 2.14. Taxes 28
SECTION 2.15. Sharing of Payments, Etc. 29
SECTION 2.16. Evidence of Debt 30
SECTION 2.17. Use of Proceeds 30
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 30
i
SECTION 3.02. Conditions Precedent to Each Borrowing,
Issuance and Renewal. 32
SECTION 3.03. Determinations Under Section 3.01 33
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Loan Parties 33
ARTICLE V
SECTION 5.01. Affirmative Covenants 35
SECTION 5.02. Negative Covenants 38
SECTION 5.03. Financial Covenants 40
ARTICLE VI
SECTION 6.01. Events of Default 40
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default 42
ARTICLE VII
SECTION 7.01. Guaranty; Limitation of Liability 43
SECTION 7.02. Guaranty Absolute 44
SECTION 7.03. Waivers and Acknowledgments 45
SECTION 7.04. Subrogation 45
SECTION 7.05. Subordination 46
SECTION 7.06. Continuing Guaranty; Assignments 47
SECTION 7.07. Release of Guarantors 47
ARTICLE VIII
SECTION 8.01. Authorization and Action 48
SECTION 8.02. Agent's Reliance, Etc. 48
SECTION 8.03. Citibank and Affiliates 48
SECTION 8.04. Lender Credit Decision 48
SECTION 8.05. Indemnification 49
ii
SECTION 8.06. Successor Agent 49
SECTION 8.07. Other Agents. 50
ARTICLE IX
SECTION 9.01. Amendments, Etc. 50
SECTION 9.02. Notices, Etc. 50
SECTION 9.03. No Waiver; Remedies 51
SECTION 9.04. Costs and Expenses 51
SECTION 9.05. Right of Set-off 53
SECTION 9.06. Binding Effect 53
SECTION 9.07. Assignments and Participations 54
SECTION 9.08. Confidentiality 56
SECTION 9.09. Governing Law 56
SECTION 9.10. Execution in Counterparts 56
SECTION 9.11. Jurisdiction, Etc. 56
SECTION 9.12. No Liability of the Issuing Banks 57
SECTION 9.13. Judgment 57
SECTION 9.14. Waiver of Jury Trial 59
iii
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 2.01(b) - Exiting Letters of Credit
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
iv
FIVE YEAR CREDIT AGREEMENT
Dated as of June 27, 2003
NEWS AMERICA INCORPORATED, a Delaware corporation (the "Borrower"),
FEG HOLDINGS, INC., a Delaware corporation, FOX ENTERTAINMENT GROUP, INC., a
Delaware corporation, NEWS AMERICA MARKETING FSI, INC., a Delaware corporation,
NEWS PUBLISHING AUSTRALIA LIMITED, a Delaware corporation, and THE NEWS
CORPORATION LIMITED, an Australian corporation (collectively, the "Initial
Guarantors"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") and initial issuing banks (the "Initial Issuing Banks")
listed on the signature pages hereof, CITIGROUP GLOBAL MARKETS INC. and ▇.▇.
▇▇▇▇▇▇ SECURITIES INC., as joint lead arrangers and joint bookrunners, JPMORGAN
CHASE BANK, as syndication agent, BANK OF AMERICA, N.A., BNP PARIBAS and HSBC
BANK USA, as co-documentation agents, and CITIBANK, N.A. ("Citibank"), as
administrative agent (the "Agent") for the Lenders (as hereinafter defined),
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"A$" means the lawful currency of the Commonwealth of Australia.
"Additional Guarantor" has the meaning specified in Section 5.01(j).
"Adjusted Operating Income" of any Person means, for any period,
without duplication, Consolidated operating income plus Consolidated
depreciation expense plus Consolidated amortization expense plus all Cash
Dividends other than from Subsidiaries plus, to the extent included in
operating income, any non-cash write-offs of depreciable or amortizable
assets relating to property, plant, equipment or intangible assets, in each
case as determined in accordance with GAAP for such period. For purposes of
calculating Adjusted Operating Income for any Rolling Period in connection
with the determination of compliance with Section 5.03, if during such
Rolling Period any member of the Reporting Group shall have made a Material
Acquisition or a Material Disposition, Adjusted Operating Income for such
Rolling Period shall be calculated after giving pro forma effect thereto as
if such Material Acquisition or Material Disposition occurred on the first
day of such Rolling Period.
"Advance" means an advance by a Lender to the Borrower as part of a
Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance
(each of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person; provided that any
Person that would be an Affiliate solely by reason of the fact that a
director or officer of such Person is also a director or officer of a
member of the Reporting Group shall be deemed not to be an Affiliate for
purposes of this definition. For purposes of this definition, the term
"control" (including the terms "controlling," "controlled by" and "under
common control with") of a Person means the possession, direct or indirect,
of the power to vote 20% or more of the Voting Stock of such Person or to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means the account of the Agent maintained by the
Agent at Citibank at its office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Attention: Bank Loan Syndications.
"Agent's Office" means the office of the Agent at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or such other office as the Agent may specify
to the Borrower from time to time.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"Applicable Margin" means (a) for Base Rate Advances, 0% per annum and
(b) for Eurodollar Rate Advances, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
------------------------------------------------
Public Debt Rating Applicable Margin for
S&P/▇▇▇▇▇'▇ Eurodollar Rate Advances
------------------------------------------------
Level 1
BBB+ or Baa1 or above 0.500%
------------------------------------------------
Level 2
BBB or Baa2 0.600%
------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇▇ ▇▇▇▇ 0.675%
------------------------------------------------
Level 4
BB+ and Ba1 1.075%
------------------------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 1.250%
------------------------------------------------
"Applicable Percentage" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
----------------------------------
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Percentage
----------------------------------
Level 1
BBB+ or Baa1 or above 0.125%
----------------------------------
Level 2
BBB or Baa2 0.150%
----------------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇▇ ▇▇▇▇ 0.200%
----------------------------------
Level 4
BB+ and Ba1 0.300%
----------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.375%
----------------------------------
2
"Applicable Utilization Fee" means, as of any date that the aggregate
Advances plus the aggregate Available Amount of outstanding Letters of
Credit exceed 25% of the aggregate Commitments, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
---------------------------------------
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇ Utilization Fee
---------------------------------------
Level 1
BBB+ or Baa1 or above 0.125%
---------------------------------------
Level 2
BBB or Baa2 0.125%
---------------------------------------
▇▇▇▇▇ ▇
▇▇▇- ▇▇▇ ▇▇▇▇ 0.125%
---------------------------------------
Level 4
BB+ and Ba1 0.250%
---------------------------------------
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ 0.375%
---------------------------------------
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Attributable Debt" means, at any time, in connection with any sale
and leaseback transaction, the product of (i) the net proceeds from such
sale and leaseback transaction times (ii) a fraction, the numerator of
which is the number of days of the term of the lease relating to the
property involved in such sale and leaseback transaction (without regard to
any options to renew or extend such term) remaining at the date of the
making of such calculation and the denominator of which is the number of
days of the term of such lease measured from the first day of such term.
"Australia" means the Commonwealth of Australia.
"Australian Corporations Law" means the Corporation ▇▇▇ ▇▇▇▇ of
Australia, as it may be amended from time to time.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Bankruptcy Law" means any proceeding of the type referred to in
Section 6.01(f) or Title 11, U.S. Code, or any similar foreign, federal or
state law for the relief of debtors.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate; or
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.07(a)(i).
3
"Borrower Information" has the meaning specified in Section 9.08.
"Borrowing" means a borrowing consisting of simultaneous Advances of
the same Type made by each of the Lenders pursuant to Section 2.01 or 2.03.
"BUCS(SM) Securities" means (i) the 0.75% Senior Exchangeable
Beneficial Unsecured exChangeable Securities ("BUCS") issued by News
Corporation Finance Trust II pursuant to the terms of an Amended and
Restated Declaration of Trust dated as of March 21, 2003 (the "Finance
Trust Securities"), (ii) the 0.75% Senior Exchangeable Debentures due 2023
issued by News America Incorporated pursuant to the terms of an Indenture
dated as of March 21, 2003 and the guarantees thereof provided for therein,
and (iii) the guarantee of the Finance Trust Securities provided by The
News Corporation Limited pursuant to the terms of a Preferred Securities
Guarantee Agreement dated as of March 21, 2003, and any securities issued
in exchange for the above pursuant to a registration statement.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"Cash Dividends" means, all dividends, all purchases, redemptions,
retirements, defeasances or other acquisitions of any capital stock or
shares or any warrants, rights or options to acquire such capital stock or
shares, in each case to the extent paid in cash by or on behalf of the
issuer thereof, all returns of capital to stockholders or shareholders as
such and all returns in respect of loan stock or any similar Investment, in
each case to the extent paid in cash.
"Cash Equivalents" means any of the following, so long as they are
owned free and clear of all Liens and have a maturity of not greater than
180 days from the date of issuance thereof: (a) readily marketable direct
obligations of the United States, the United Kingdom or Australia or, in
each case, any agency or instrumentality thereof or obligations
unconditionally guaranteed by the full faith and credit of the United
States or unconditionally guaranteed by the government of the United
Kingdom or Australia, (b) repurchase agreements with respect to obligations
of the type referred to in clause (a) above with any securities dealers
that are fully collateralized by such obligations, (c) certificates of
deposit of or time deposits or Eurodollar deposits with any commercial
bank, that has a combined capital and surplus of at least US$1,000,000,000
or its equivalent in other currencies or (d) commercial paper that is rated
at least "Prime-1" (or the equivalent grade) by ▇▇▇▇▇'▇ or "A-1" (or the
equivalent grade) by S&P.
"CFC" means a "controlled foreign corporation" under Section 957 of
the Internal Revenue Code.
"Commitment" means a Revolving Credit Commitment or a Letter of Credit
Commitment.
"Compliance Certificate" means a certificate executed by the chief
financial officer or the deputy chief financial officer of the Parent
Guarantor delivered with financial statements in accordance with Section
5.01(i)(ii) and (iii) (a) stating that no Default has occurred and is
continuing and (b) setting forth in reasonable detail the calculations
necessary to demonstrate compliance with Section 5.03 and (c) in the event
of any change in generally accepted accounting principles used in the
preparation of the financial statements delivered with such Compliance
Certificate, and if necessary for determination of compliance with Section
5.03, a statement of reconciliation conforming such financial statements to
GAAP.
4
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Constitutive Documents" means, as to any Person, such Person's
certificate of incorporation or registration (including, if relevant,
certificates of change of name), memorandum of association, articles of
association or incorporation, charter, by-laws, trust deed, partnership,
joint venture or shareholders' agreement or equivalent documents
constituting such Person.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money or for money raised under a ▇▇▇▇ facility
or similar facility, (b) all indebtedness of such Person for the deferred
purchase price of property or services that would appear as a liability on
a statement of financial position of such Person prepared in accordance
with GAAP (other than (i) payables incurred in the ordinary course of
business with payment terms of not more than 180 days, (ii) royalties and
(iii) Programming Liabilities), (c) all Obligations of such Person
evidenced by notes, bonds (other than performance and similar bonds),
debentures, loan stock or other similar instruments, (d) all Obligations of
such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement
in the event of default are limited to repossession or sale of such
property), (e) the principal component of the Obligations of such Person as
lessee under leases that are, in accordance with GAAP, capital or finance
leases ("Capitalized Leases"), (f) all Obligations, contingent or
otherwise, of such Person under acceptance, letter of credit, note purchase
facility or other discounting arrangement or similar facilities and any
indemnity given in respect of any of them (other than any letter of credit
in support of trade payables incurred in the ordinary course of business
with an expiration date of not more than 180 days from the date of issuance
thereof), (g) all Obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any capital stock or
shares of or other ownership or profit interest in the equity of such
Person or any of its Affiliates or any warrants, rights or options to
acquire such capital stock or shares, valued, in the case of Redeemable
Preferred Stock, at the greater of its voluntary or involuntary liquidation
preference plus accrued dividends thereon that have not been paid on the
stated date for payment thereof, but excluding any Obligation arising
solely as a result of the declaration of a dividend on any capital stock or
shares of such Person, (h) all Debt of others referred to in clauses (a)
through (g) above guaranteed directly or indirectly in any legally binding
manner by such Person, or in effect guaranteed in any legally binding
manner directly or indirectly by such Person through an agreement (each
such agreement, a "Debt Guaranty"), provided, that, for purposes of this
Agreement the Debt of such Person shall be equal to the obligations of such
Person under the applicable Debt Guaranty as and to the extent that there
is a demand for payment under such Debt Guaranty, (i) to pay or purchase
such Debt or to advance or supply funds for the payment or purchase of such
Debt, (ii) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Debt or to assure the holder of such Debt against
loss, (iii) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (iv)
otherwise to assure a creditor against loss in a legally binding manner,
and (i) all Debt referred to in clauses (a) through (h) above secured by
(or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such Debt,
valued at the lesser of the amount of such Debt and the fair market value
of such property. Notwithstanding anything stated herein to the contrary,
for the
5
purposes of this Agreement the following shall not constitute "Debt": (A)
the TOPrS(SM) Securities, (B) any Obligation owed between members of the
Reporting Group, (C) any Obligation which is payable by its terms or at the
option of the Parent Guarantor or other member of the Reporting Group in
equity securities other than the BUCS(SM) Securities and (D) preferred
limited liability membership interests (or equivalent interests) held by a
third party, the proceeds of which are used to fund film financing.
"Debt Guaranty" has the meaning specified in clause (h) of the
definition of "Debt".
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Dollars" and "US$" each means the lawful currency of the United
States.
"Dollar Equivalent" of any currency (other than Dollars) on any date
means the equivalent in Dollars of such currency determined by using the
quoted spot rate at which the Agent's principal office in London offers to
exchange Dollars for such currency in London at approximately 4:00 P.M.
(London time) (unless otherwise indicated by the terms of this Agreement)
on such date as is required pursuant to the terms of this Agreement.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
and (iii) any other Person approved by the Agent and, unless an Event of
Default has occurred and is continuing at the time any assignment is
effected in accordance with Section 9.07, the Borrower, such approval not
to be unreasonably withheld or delayed; provided, however, that neither the
Borrower nor an Affiliate of the Borrower shall qualify as an Eligible
Assignee.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, Environmental
Permit or Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment, including, without limitation,
(a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any applicable federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
6
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are met
with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of a Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur
with respect to such Plan within the following 30 days; (b) the application
for a minimum funding waiver with respect to a Plan; (c) the provision by
the administrator of any Plan of a notice of intent to terminate such Plan
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (d)
the cessation of operations at a facility of the Borrower or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, a Plan.
"Euro" means the lawful currency of the European Union as constituted
by the Treaty of Rome which established the European Community, as such
treaty may be amended from time to time and as referred to in the European
Monetary Union legislation.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upward to the nearest whole multiple of 1/32 of 1% per
annum) appearing on Moneyline Telerate Markets Page 3750 (or any successor
page) as the London interbank offered rate for deposits in U.S. dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period
or, if for any reason such rate is not available, the average (rounded
upward to the nearest whole multiple of 1/32 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which deposits in
U.S. dollars are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London
7
interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount substantially equal to such
Reference Bank's Eurodollar Rate Advance comprising part of such Borrowing
to be outstanding during such Interest Period and for a period equal to
such Interest Period by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period. If the Moneyline Telerate
Markets Page 3750 (or any successor page) is unavailable, the Eurodollar
Rate for any Interest Period for each Eurodollar Rate Advance comprising
part of the same Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the Reference
Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate
Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Guaranty Debt" means, at any time, the excess, if any, of the
aggregate Dollar Equivalent amount of all Debt Guaranties by members of the
Reporting Group of Debt of Persons which are not members of the Reporting
Group, over US$800,000,000.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding 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 of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by
it.
"Film Special Purpose Vehicle" means any Special Purpose Vehicle
established for the sole purpose of financing, producing, distributing,
acquiring, marketing, licensing and/or syndicating television programs or
films.
"Financing Subsidiary" means each Subsidiary of the Parent Guarantor
organized solely for the purpose of providing financing for the members of
the Reporting Group and holding no assets other than loans or advances to
other members of the Reporting Group, cash and Cash Equivalents and
immaterial amounts of other assets.
"GAAP" has the meaning specified in Section 1.03.
"Guaranteed Obligations" has the meaning specified in Section 7.01.
8
"Guarantors" means each Initial Guarantor and each Additional
Guarantor, in each case for so long as such Person is a party hereto.
"Guaranty Supplement" has the meaning specified in Section 5.01(j).
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Information Memorandum" means the information memorandum dated June
3, 2003 used in connection with the syndication of the Commitments.
"Interest Expense" means, for any period, (a) net interest expense on
Debt determined in accordance with GAAP for such period, other than any
amount thereof not paid in cash during such period (including, without
limitation, amortization of capitalized interest and financing fees during
such period), plus (b) Cash Dividends paid during such period on Preferred
Stock that constitutes Debt (other than Investment Preferred Stock), less
(c) to the extent not otherwise deducted in calculating such net interest
expense, the sum of cash interest received on loans to Affiliates (other
than Subsidiaries) during such period and cash interest received on
balances at banks and on Investments in Cash Equivalents during such
period, and less (d) to the extent otherwise included in calculating such
net interest expense, interest and financing fees that are capitalized
during such period. For purposes of calculating Interest Expense for any
Rolling Period in connection with the determination of compliance with
Section 5.03, if during such Rolling Period any member of the Reporting
Group shall have made a Material Acquisition or a Material Disposition,
Interest Expense for such Rolling Period shall be calculated after giving
pro forma effect thereto as if such Material Acquisition or Material
Disposition occurred on the first day of such Rolling Period.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, and subject to clause (c) of this definition, nine or twelve
months, as the Borrower may, upon notice received by the Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the
first day of such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period that ends
after the Termination Date;
(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Borrowing shall be of the
same duration;
(c) in the case of any such Borrowing, the Borrower shall not be
entitled to select an Interest Period having duration of nine or
twelve months unless, by 2:00 P.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, each
Lender notifies the Agent that such Lender will be providing funding
for
9
such Borrowing with such Interest Period (the failure of any Lender to
so respond by such time being deemed for all purposes of this
Agreement as an objection by such Lender to the requested duration of
such Interest Period); provided that, if any or all of the Lenders
object to the requested duration of such Interest Period, the duration
of the Interest Period for such Borrowing shall be one, two, three or
six months, as specified by the Borrower in the applicable Notice of
Borrowing as the desired alternative to an Interest Period of nine or
twelve months;
(d) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(e) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Investment" in any Person means any loans or advances to such Person,
any purchase or other acquisition of a business or assets of such Person as
a going concern or of any capital stock or shares, warrants, rights,
options, obligations or other securities of such Person, any capital
contribution to such Person or any other similar investment in such Person,
including, without limitation (but without duplication), any arrangement
pursuant to which the investor issues any Debt Guaranty or incurs any Debt
of the type referred to in clause (i) of the definition of Debt in respect
of such Person, but excluding (a) any Negative Pickup Arrangement and (b)
advances made to suppliers in respect of assets purchased or services
contracted for in the ordinary course of business, or the acquisition of
receivables owing to any member of the Reporting Group from and the making
of advances to, suppliers, producers, customers and individuals
constituting the "talent" of such Person to the extent that such advance or
acquisition is made (A) in the ordinary course of business of such Person
and is consistent with the commercial practices of such Person prior to the
date hereof or (B) is consistent with commercially reasonable practices at
such time and is payable or dischargeable in accordance with customary
terms.
"Investment Preferred Stock" means Preferred Stock issued by any
Financing Subsidiary of the Parent Guarantor and guaranteed by the Parent
Guarantor that would be classified as equity of the Parent Guarantor under
GAAP and that is issued with an aggregate liquidation preference not
exceeding US$345,000,000.
"Issuing Bank" means an Initial Issuing Bank and any Eligible Assignee
to which a portion of the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 9.07 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the Agent of its Applicable
Lending Office (which information shall be recorded by the Agent in the
Register), for so long as such Initial Issuing Bank or Eligible Assignee,
as the case may be, shall have a Letter of Credit Commitment.
10
"L/C Cash Collateral Account" means an interest bearing cash
collateral account for the benefit of the Borrower to be established and
maintained by the Agent, over which the Agent shall have sole dominion and
control, upon terms as may be satisfactory to the Agent.
"L/C Related Documents" has the meaning specified in Section
2.06(b)(i).
"Lenders" means the Initial Lenders, each Issuing Bank and each Person
that shall become a party hereto pursuant to Section 9.07.
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to each Initial
Issuing Bank, the amount set forth opposite the Initial Issuing Bank's name
on the signature pages hereto under the caption "Letter of Credit
Commitment" or, if such Initial Issuing Bank has entered into one or more
Assignment and Acceptances, the amount set forth for such Issuing Bank in
the Register maintained by the Agent pursuant to Section 9.07(d) as such
Issuing Bank's "Letter of Credit Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to the
lesser of (a) the aggregate amount of the Issuing Banks' Letter of Credit
Commitments at such time and (b) US$600,000,000, as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"Letters of Credit" has the meaning specified in Section 2.01(b).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Document" means this Agreement, the Notes and the other L/C
Related Documents.
"Loan Parties" means the Borrower and the Guarantors.
"Material Acquisition" means any acquisition of assets or series of
related acquisitions of assets (including by way of merger) which (a)
constitutes assets comprising that portion of the common stock or other
equity interests of, or all or a substantial part of the assets of any
Person which results in such Person becoming a Consolidated Subsidiary of
the Parent Guarantor, or a business unit or division of, any Person and (b)
involves the payment of consideration by the parent Guarantor and its
Subsidiaries (valued at the initial principal amount thereof in the case of
non-cash consideration consisting of notes or other debt securities and
valued at fair market value in the case of other non-cash consideration) in
excess of US$50,000,000.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of the Reporting Group taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Reporting Group taken as a whole, (b) the rights and
remedies of the Agent or any Lender under this Agreement or (c) the
11
ability of the members of the Reporting Group to perform their Obligations
under this Agreement.
"Material Disposition" means any sale, lease, assignment, conveyance,
transfer or other disposition (a "Disposition") of property or series of
related Dispositions of property which yields gross proceeds to the Parent
Guarantor or any of its Subsidiaries (valued at the initial principal
amount thereof in the case of non-cash proceeds consisting of notes or
other debt securities and valued at fair market value in the case of other
non-cash proceeds) in excess of US$50,000,000.
"Material Subsidiary" means any direct or indirect Subsidiary of the
Parent Guarantor that represents Consolidated operating income equal to or
greater than 10% of the Consolidated operating income of the Parent
Guarantor for the fiscal year immediately prior to the date of
determination, either individually or together with such Subsidiary's
Consolidated Subsidiaries; provided, however, that "Material Subsidiary"
shall not include (a) any direct or indirect Subsidiary of Fox
Entertainment Group, Inc. or its successors (collectively, "FEG"); (b) any
direct or indirect Subsidiary of the Parent Guarantor which is subject to
any restriction, contractual or otherwise, which would prohibit or restrict
such Subsidiary from becoming a Guarantor hereunder, which prohibition or
restriction exists at the time such entity would otherwise become a
Material Subsidiary; or (c) any Subsidiary that is or becomes a CFC.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making
or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in respect
of which the Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Negative Pickup Arrangements" means arrangements entered into in the
ordinary course of business for the production and/or acquisition of some
or all of the rights to television programming or films.
"Note" means a promissory note of the Borrower payable to the order of
any Lender, delivered pursuant to a request made under Section 2.16 in
substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Advances
made by such Lender.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Renewal" has the meaning specified in Section 2.03(a).
"Obligation" means, with respect to any Person, any obligation of such
Person of any kind, including, without limitation, any liability of such
Person on any claim, fixed, contingent or
12
otherwise, whether or not such claim is discharged, stayed or otherwise
affected by any proceeding of the type referred to in Section 6.01(f).
Without limiting the generality of the foregoing, the Obligations of the
Loan Parties under this Agreement include (a) the obligation to pay
principal, interest, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by any Loan Party
under this Agreement and (b) the obligation to reimburse any amount in
respect of any of the foregoing that any Lender, in its sole discretion,
may elect to pay or advance on behalf of such Loan Party.
"Parent Guarantor" means the ultimate parent company of the Borrower
that trades its securities on a nationally recognized stock exchange.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Film Financing" means Debt and equity financing
arrangements with third parties for the financing, production,
distribution, acquisition, marketing, licensing and/or syndication of
television programming or films by any Person in which any interest held by
a member of the Reporting Group is held through a Film Special Purpose
Vehicle and as to which no member of the Reporting Group has incurred any
Debt other than through such Film Special Purpose Vehicle.
"Permitted Liens" means any of the following: (a) any Lien that arises
in favor of an unpaid seller in respect of goods, plant or equipment sold
and delivered to any member of the Reporting Group in the ordinary course
of its business until payment of the purchase price for such goods or plant
or equipment or any other goods, plant or equipment previously sold and
delivered by that seller (except to the extent that such Lien secures Debt
or arises otherwise than due to deferment of payment of purchase price);
(b) Liens arising by operation of law and in the ordinary course of
business, including Liens for taxes, assessments and governmental charges
or levies that are either (i) not yet overdue or (ii) being contested in
good faith and by appropriate proceedings and as to which appropriate
reserves are being maintained; (c) any Lien or pledge created or subsisting
in the ordinary course of business over documents of title, insurance
policies or sale contracts in relation to commercial goods to secure the
purchase price thereof; (d) any Lien with respect to documents of title to
any asset or over cash paid to purchase such asset, to the extent arising
from the delivery thereof to any financial institution or firm of lawyers
or title company to be held in escrow pursuant to any agreement or
arrangement for the purchase or sale of such asset, provided that (i) such
agreement or arrangement is not in respect of Debt described in clause (a)
or (c) of the definition of Debt of any member of the Reporting Group, (ii)
such documents of title are held in escrow only pending the satisfaction of
conditions precedent to the purchase or sale of such asset and (iii) such
agreement or arrangement and the related purchase or sale are not otherwise
prohibited under this Agreement; (e) pledges or deposits in connection with
worker's compensation, unemployment insurance and other social security
legislation, (f) Liens to secure performance bonds incurred in the ordinary
course of business; (g) any Lien with respect to any asset (including,
without limitation, securities, documents of title and source codes), to
the extent arising from the delivery of such asset to any financial
institution, firm of lawyers, title company or other entity that holds
assets in escrow or custody, to be held in escrow pursuant to any agreement
or arrangement granted in the ordinary course of business; (h) statutory
Liens of carriers, warehousemen, mechanics, suppliers, materialmen,
repairmen and other like Liens arising in the ordinary course of business
and with respect to amounts not yet delinquent or being contested in good
faith by appropriate proceedings, if a reserve or other appropriate
provision has been made; (i) easements, rights of way and other
encumbrances on title to real property that do not materially adversely
affect the use of such property for its present purposes; provided that, in
the case of clause (a) and (c) of this definition, there is no default in
the underlying obligation
13
secured by such encumbrance or such obligation is being contested in good
faith and by appropriate proceedings, and (j) any banker's right of set off
or combination of accounts conferred in the ordinary course of banking
arrangements.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Post-Petition Interest" has the meaning specified in Section 7.06.
"Preferred Stock" means, with respect to any corporation, capital
stock or shares issued by such corporation that is entitled to a preference
or priority over any other capital stock or shares issued by such
corporation upon any distribution of such corporation's assets, whether by
dividend or upon liquidation.
"Programming Liabilities" means all Obligations incurred in the
ordinary course of business to finance, produce, distribute, acquire,
market, license and/or syndicate television programming or films, other
than any such Obligations for Debt described in clause (a) of the
definition of Debt and Debt Guaranties of such Debt.
"Pro Rata Share" of any amount means, with respect to any Lender at
any time, the product of (a) a fraction the numerator of which is the
amount of such Lender's Revolving Credit Commitment at such time and the
denominator of which is the aggregate Revolving Credit Commitments at such
time and (b) such amount.
"Public Debt Rating" means, as of any date, the rating that has been
most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by
the Borrower or, if any such rating agency shall have issued more than one
such rating, the lowest such rating issued by such rating agency. For
purposes of the foregoing, (a) if only one of S&P and Moody's shall have in
effect a Public Debt Rating, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee shall be determined by
reference to the available rating; (b) if neither S&P nor Moody's shall
have in effect a Public Debt Rating, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee will be set in accordance
with Level 5 under the definition of "Applicable Margin", "Applicable
Percentage" or "Applicable Utilization Fee", as the case may be; (c) if the
ratings established by S&P and Moody's shall fall within different levels
and both ratings are Level 3 or higher, the Applicable Margin, the
Applicable Percentage and the Applicable Utilization Fee shall be based
upon the higher rating unless such ratings differ by two or more levels, in
which case the applicable level will be deemed to be one level above the
lower of such levels; (d) if the ratings established by S&P and Moody's
shall fall within different levels and both ratings are Level 4 or lower,
or ▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the Applicable Percentage
and the Applicable Utilization Fee shall be based upon the lower rating,
(e) if any rating established by S&P or Moody's shall be changed, such
change shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (f) if S&P
or Moody's shall change the basis on which ratings are established, each
reference to the Public Debt Rating announced by S&P or Moody's, as the
case may be, shall refer to the then equivalent rating by S&P or Moody's,
as the case may be.
14
"Public Senior Debt" means Senior Debt of any member of the Reporting
Group that is registered pursuant to a registration statement filed with
the U.S. Securities and Exchange Commission or any comparable national or
state regulatory or governmental body in any jurisdiction of the United
States or otherwise, plus any Senior Debt that any member of the Reporting
Group has issued and provided registration rights to the holders of such
privately placed securities in connection with such issuance.
"Redeemable" means, with respect to any capital stock or shares, any
such capital stock or shares that (a) the issuer has undertaken to redeem
at a fixed or determinable date or dates, whether by operation of a sinking
fund or otherwise, or upon the occurrence of a condition not solely within
the control of the issuer or (b) is redeemable at the option of the holder,
provided that no such capital stock or shares shall be considered to be
Redeemable, or to be Debt, solely pursuant to clause (a) or (b) hereof if
the issuer's undertaking to redeem any such capital stock or shares may be
satisfied in full, at its option, by the delivery to the holders thereof of
ordinary shares of the Parent Guarantor.
"Reference Banks" means Citibank, JPMorgan Chase Bank, Bank of
America, N.A., BNP Paribas and HSBC Bank USA.
"Register" has the meaning specified in Section 9.07(d).
"Reporting Group" means the Parent Guarantor and its Subsidiaries.
"Required Lenders" means at any time Lenders owed at least a majority
in interest of the then aggregate unpaid principal amount of the Advances
owing to Lenders, or, if no such principal amount is then outstanding,
Lenders having at least a majority in interest of the Revolving Credit
Commitments.
"Responsible Officer" means of the following Persons: the chief
financial officer, chief executive officer, deputy chief financial officer
or the treasurer of either of the Parent Guarantor or the Borrower, or the
Group General Counsel of the Parent Guarantor.
"Revolving Credit Commitment" means as to any Lender (a) the amount
set forth opposite such Lender's name on the signature pages hereof under
the caption "Revolving Credit Commitment" or (b) if such Lender has entered
into any Assignment and Acceptance, the amount set forth for such Lender in
the Register maintained by the Agent pursuant to Section 9.07(d), as such
amount may be reduced pursuant to Section 2.05.
"Rolling Period" means, for any fiscal quarter, such fiscal quarter
and the preceding three fiscal quarters. Any reference in Section 5.03 of
this Agreement to a Rolling Period ending on any specified date shall be
construed as a reference to the Rolling Period ending closest in time to
such date.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Senior Debt" means all Debt of the Reporting Group that does not
provide by its terms that it is subordinate in right of payment to the
Obligations of the Loan Parties under this Agreement.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no
15
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on any date,
that on such date (a) in the case of any Person organized under the laws of
a jurisdiction other than any state or territory of Australia, (i) the fair
value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person, (ii) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable
liabilities of such Person on its debts as they become absolute and
matured, (iii) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as
such debts and liabilities mature and (iv) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an
unreasonably small capital and (b) in the case of any Person organized
under the laws of any state or territory of Australia, (i) such Person has
not become unable to pay its debts generally as and when they become due
and payable, (ii) such Person has not suspended payment, and has not taken
steps to suspend payment, of its debts generally and (iii) such Person has
not entered into or resolved to enter into, or taken steps to enter into,
any arrangement, composition or compromise with its creditors or any class
of them (other than for the purpose of a solvent amalgamation or
reconstruction).
"Special Purpose Vehicle" means a Person that is, or was, established:
(a) with a separate legal identity and limited liability; (b) as a member
of the Reporting Group; and (c) for the sole purpose of a single
transaction, or series of related transactions, and that has no assets and
liabilities other than those directly acquired or incurred in connection
with such transaction(s).
"Subordinated Obligations" has the meaning specified in Section 7.05.
"Subsidiary" of any Person means (a) any corporation, partnership,
joint venture, trust or estate of which (or in which) more than 50% of (i)
the issued and outstanding capital stock, voting shares or ordinary shares
having ordinary voting power to elect a majority of the Board of Directors
of such corporation (irrespective of whether at the time capital stock of
any other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (ii) the interest in the
capital or profits of such partnership or joint venture or (iii) the
beneficial interest in such trust or estate, is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries, (b) in the case of (x) the Parent Guarantor, for so long as
FEG is a Subsidiary of the Parent Guarantor, (y) FEG and (z) any other
member of the Reporting Group of which FEG is a Subsidiary, includes Fox
Television Holdings, Inc. and its Subsidiaries, (c) in the case of any
member of the Reporting Group, any Person in which such member holds an
interest that owns television stations the capital structure of which is
substantially similar to that of Fox Television Holdings, Inc. and (d) in
relation to any Person that is, or becomes, subject to the Australian
Corporations Law, (i) a "subsidiary" of such Person as defined in and for
the purposes of the Australian Corporations Law, (ii) if such Person has
appointed or is in a position to appoint one or more directors of another
corporation and that director or those directors are in a position to cast,
or control the casting of, more than one-half of the maximum number of
votes that might be cast at a meeting of directors of that other
corporation, such other corporation, and (iii) where the expression is used
in this Agreement in connection with the content or preparation of
consolidated financial statements (as defined in the Australian
Corporations Law), any "Entity" (as defined in Section 64A of the
Australian Corporations Law) that such Person is taken to control (as
defined in Section 50AA of the
16
Australian Corporations Law) and (e) in the case of a Person that is an
English company, any other Person that is a "subsidiary" of such Person as
defined pursuant to Section 736 of the English Companies ▇▇▇ ▇▇▇▇.
"Tangible Assets" of any Person is defined as, as of any date, the
amount of total assets of such Person and its Subsidiaries on a
Consolidated basis at such date less goodwill, trade names, patents,
unamortized debt discount expense and other like intangibles, all
determined in accordance with GAAP.
"Termination Date" means the earlier of June 30, 2008 and the date of
termination in whole of the Commitments pursuant to Section 2.05 or 6.01.
"TOPrS(SM) Securities" means (i) the 5% Exchangeable Trust Originated
Preferred Securities issued by News Corporation Exchange Trust pursuant to
the terms of an Amended and Restated Declaration of Trust dated as of
November 12, 1996 (the "Exchange Securities"), (ii) the 5% Trust Originated
Preferred Securities issued by News Corporation Finance Trust pursuant to
the terms of an Amended and Restated Declaration of Trust dated as of
November 12, 1996 (the "Finance Securities"), (iii) the 5% Subordinated
Discount Debentures due 2016 issued by the Borrower pursuant to the terms
of an Indenture dated as of November 12, 1996 and the guarantees thereof
provided for therein, (iv) the guarantee of the Exchange Securities
provided by the Parent Guarantor pursuant to the terms of a Preferred
Securities Guarantee Agreement dated as of November 12, 1996, (v) the
guarantee of the Finance Securities provided by the Parent Guarantor
pursuant to the terms of a Preferred Securities Guarantee Agreement dated
as of November 12, 1996 and (vi) the Borrower's obligations under the
Warrant Agreement dated as of November 12, 1996 and the guarantees thereof
provided for therein.
"Unissued Letter of Credit Commitment" means, with respect to any
Issuing Bank, such Issuing Bank's Letter of Credit Commitment minus the
aggregate Available Amount of all Letters of Credit issued by such Issuing
Bank.
"Unused Commitment" means, with respect to each Lender at any time,
(a) such Lender's Revolving Credit Commitment at such time minus (b) the
sum of (i) the aggregate principal amount of all Advances made by such
Lender (in its capacity as a Lender) and outstanding at such time, plus
(ii) such Lender's Pro Rata Share of the aggregate Available Amount of all
the Letters of Credit outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
equity consolidated financial statements referred to in Section 4.01(e)
("GAAP").
ARTICLE II
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AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. The Advances and Letters of Credit. (a) Advances. Each
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make Advances in Dollars to the Borrower from time to time on any Business Day
during the period from the Effective Date until the Termination Date in an
amount not to exceed at any time such Lender's Unused Commitment. Each Borrowing
shall be in an aggregate amount of US$25,000,000 or an integral multiple of
US$5,000,000 in excess thereof and shall consist of Advances of the same Type
made on the same day by the Lenders ratably according to their respective
Revolving Commitments. Within the limits of each Lender's Revolving Credit
Commitment, the Borrower may borrow under this Section 2.01(a), prepay pursuant
to Section 2.10 and reborrow under this Section 2.01(a).
(b) Letters of Credit. Each Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue letters of credit (each, a "Letter of
Credit") in Dollars or Euros for the account of the Borrower from time to time
on any Business Day during the period from the Effective Date until 30 days
before the Termination Date in an aggregate Available Amount (converting all
Euros into the then Dollar Equivalent thereof) (i) for all Letters of Credit
issued by each Issuing Bank not to exceed at any time the lesser of (x) the
Letter of Credit Facility at such time and (y) such Issuing Bank's Letter of
Credit Commitment at such time and (ii) for each such Letter of Credit not to
exceed an amount equal to the Unused Commitments of the Lenders at such time.
Each Letter of Credit shall be in for an amount of US$5,000,000 or more. No
Letter of Credit shall have an expiration date (including all rights of the
Borrower or the beneficiary to require renewal, but not including any Letter of
Credit issued in favor of an Italian tax authority, which may have an expiration
date not later than five years after the issuance thereof) later than (x) the
date that is one year after the date of issuance thereof, but may by its terms
be renewable annually upon notice (a "Notice of Renewal") given to the Issuing
Bank that issued such Letter of Credit and the Agent on or prior to any date for
notice of renewal set forth in such Letter of Credit but in any event at least
three Business Days prior to the date of the proposed renewal of such Letter of
Credit and upon fulfillment of the applicable conditions set forth in Article
III unless such Issuing Bank has notified the Borrower (with a copy to the
Agent) on or prior to the date for notice of termination set forth in such
Letter of Credit but in any event at least 30 Business Days prior to the date of
automatic renewal of its election not to renew such Letter of Credit (a "Notice
of Termination") and (y) 10 Business Days prior to the Termination Date;
provided that the terms of each Letter of Credit that is automatically renewable
annually shall (x) require the Issuing Bank that issued such Letter of Credit to
give the beneficiary named in such Letter of Credit notice of any Notice of
Termination, (y) permit such beneficiary, upon receipt of such notice, to draw
under such Letter of Credit prior to the date such Letter of Credit otherwise
would have been automatically renewed and (z) not permit the expiration date
(after giving effect to any renewal) of such Letter of Credit in any event to be
extended to a date later than 10 Business Days before the Termination Date. If
either a Notice of Renewal is not given by the Borrower or a Notice of
Termination is given by the relevant Issuing Bank pursuant to the immediately
preceding sentence, such Letter of Credit shall expire on the date on which it
otherwise would have been automatically renewed; provided, however, that even in
the absence of receipt of a Notice of Renewal the relevant Issuing Bank may in
its discretion, unless instructed to the contrary by the Agent or the Borrower,
deem that a Notice of Renewal had been timely delivered and in such case, a
Notice of Renewal shall be deemed to have been so delivered for all purposes
under this Agreement. Each Letter of Credit shall contain a provision
authorizing the Issuing Bank that issued such Letter of Credit to deliver to the
beneficiary of such Letter of Credit, upon the occurrence and during the
continuance of an Event of Default, a notice (a "Default Termination Notice")
terminating such Letter of Credit and giving such beneficiary 15 Business Days
to draw such Letter of Credit. Within the limits referred to above, the Borrower
may request the issuance of Letters of Credit under this Section 2.01(b), repay
any Advances resulting from drawings thereunder pursuant to Section 2.03(c) and
request the issuance of additional Letters of Credit under this Section 2.01(b).
Each letter of credit listed on Schedule 2.01(b) shall be
18
deemed to constitute a Letter of Credit issued hereunder, and each Lender that
is an issuer of such a Letter of Credit shall, for purposes of Section 2.03, be
deemed to be an Issuing Bank for each such Letter of Credit, provided that any
renewal or replacement of any such Letter of Credit shall be issued by an
Issuing Bank pursuant to the terms of this Agreement.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be made on
notice, given not later than (x) 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M. (New York
City time) on the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the Borrower to the Agent, which shall give
to each Lender prompt notice thereof by telecopier or telex. Each such notice of
a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or telecopier or telex in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such
Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each Lender shall,
before 1:00 P.M. (New York City time) on the date of such Borrowing make
available for the account of its Applicable Lending Office to the Agent at the
Agent's Account, in same day funds, such Lender's ratable portion of such
Borrowing. After the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will make such funds
available to the Borrower at the Agent's address referred to in Section 9.02.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for any Borrowing if
the aggregate amount of such Borrowing is less than US$25,000,000 or if the
obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances
may not be outstanding as part of more than 15 separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to
the date of any Borrowing that such Lender will not make available to the Agent
such Lender's ratable portion of such Borrowing, the Agent may assume that such
Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Agent, such Lender and the
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
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(e) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters
of Credit. (a) Request for Issuance. (i) Each Letter of Credit shall be issued
upon notice, given not later than 1:00 P.M. (New York City time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of Credit
(or on such shorter notice as the applicable Issuing Bank may agree), by the
Borrower to any Issuing Bank, and such Issuing Bank shall give the Agent, prompt
notice thereof by telex, telecopier or cable. Each such notice of issuance of a
Letter of Credit (a "Notice of Issuance") shall be by telephone, confirmed
immediately in writing, or telecopier or telex, specifying therein the requested
(A) date of such issuance (which shall be a Business Day), (B) Available Amount
of such Letter of Credit, (C) expiration date of such Letter of Credit (which
shall not be later that the earlier of (x) one year after the issuance thereof
and (y) ten Business Days prior to the Termination Date), (D) name and address
of the beneficiary of such Letter of Credit and (E) form of such Letter of
Credit, and shall be accompanied by such customary application and agreement for
letter of credit as such Issuing Bank may specify to the Borrower requesting
such issuance for use in connection with such requested Letter of Credit (a
"Letter of Credit Agreement"). If the requested form of such Letter of Credit is
acceptable to such Issuing Bank in its sole discretion, such Issuing Bank will,
upon fulfillment of the applicable conditions set forth in Article III, make
such Letter of Credit available to the Borrower requesting such issuance at its
office referred to in Section 9.02 or as otherwise agreed with the Borrower in
connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
such Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Pro Rata Share of the aggregate amount available to be drawn under such
Letter of Credit. The Borrower hereby agrees to each such participation. In
consideration and in furtherance of the foregoing, each Lender hereby absolutely
and unconditionally agrees to pay to the Agent, for the account of such Issuing
Bank, such Lender's Pro Rata Share of each drawing made under a Letter of Credit
funded by such Issuing Bank and not reimbursed by the Borrower on the date made,
or of any reimbursement payment required to be refunded to the Borrower for any
reason. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender further acknowledges and agrees that its participation
in each Letter of Credit will be automatically adjusted to reflect such Lender's
Pro Rata Share of the Available Amount of such Letter of Credit at each time
such Lender's Revolving Credit Commitment is amended pursuant to an assignment
in accordance with Section 9.07 or otherwise pursuant to this Agreement.
(c) Drawing and Reimbursement. The payment by an Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by any such Issuing Bank of an Advance, which, in the case
of a Letter of Credit denominated in Dollars, shall be a Base Rate Advance, in
the amount of such draft or, in the case of a Letter of Credit denominated in
Euros, shall be a Base Rate Advance in the Dollar Equivalent on the date such
draft is paid, provided, that the Borrower shall indemnify the Agent and the
Lenders for any currency exchange losses sustained as a
20
result of the Borrower's repayment in Dollars of any Letter of Credit
denominated in Euros. Each Issuing Bank shall give prompt notice (and such
Issuing Bank will use its commercially reasonable efforts to deliver such notice
within one Business Day) of each drawing under any Letter of Credit issued by it
to the Borrower and the Agent. Upon written demand by such Issuing Bank, with a
copy of such demand to the Agent, each Lender shall pay to the Agent such
Lender's Pro Rata Share of such outstanding Advance, by making available for the
account of its Applicable Lending Office to the Agent for the account of such
Issuing Bank, by deposit to the Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such Advance to be
funded by such Lender. Promptly after receipt thereof, the Agent shall transfer
such funds to such Issuing Bank. Each Lender agrees to fund its Pro Rata Share
of an outstanding Advance on (i) the Business Day on which demand therefor is
made by such Issuing Bank, provided that notice of such demand is given not
later than 11:00 A.M. (New York City time) on such Business Day, or (ii) the
first Business Day next succeeding such demand if notice of such demand is given
after such time. If and to the extent that any Lender shall not have so made the
amount of such Advance available to the Agent, such Lender agrees to pay to the
Agent forthwith on demand such amount together with interest thereon, for each
day from the date of demand by any such Issuing Bank until the date such amount
is paid to the Agent, at the Federal Funds Rate for its account or the account
of such Issuing Bank, as applicable. If such Lender shall pay to the Agent such
amount for the account of any such Issuing Bank on any Business Day, such amount
so paid in respect of principal shall constitute an Advance made by such Lender
on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Advance made by such Issuing Bank shall be reduced by
such amount on such Business Day.
(d) Letter of Credit Reports. Each Issuing Bank shall furnish (i) to
the Agent and each Lender on the first Business Day of each month a written
report summarizing issuance and expiration dates of Letters of Credit during the
preceding month and drawings during such month under all Letters of Credit and
(ii) to the Agent and each Lender on the first Business Day of each calendar
quarter a written report setting forth the average daily aggregate Available
Amount during the preceding calendar quarter of all Letters of Credit.
(e) Failure to Make Advances. The failure of any Lender to make the
Advance to be made by it on the date specified in Section 2.03(c) shall not
relieve any other Lender of its obligation hereunder to make its Advance on such
date, but no Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on such date.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to
the Agent for the account of each Lender a facility fee on the aggregate amount
of such Lender's Commitment from the Effective Date in the case of each Initial
Lender and from the later of the Effective Date and the effective date specified
in the Assignment and Acceptance pursuant to which it became a Lender in the
case of each other Lender until the Termination Date at a rate per annum equal
to the Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing September 30, 2003, and on the Termination Date.
(b) Letter of Credit Fees. (i) The Borrower shall pay to the Agent for
the account of each Lender a commission on such Lender's Pro Rata Share of the
average daily aggregate Available Amount of all Letters of Credit outstanding
from time to time at a rate per annum equal to the Applicable Margin for
Eurodollar Rate Advances in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December,
commencing September 30, 2003, and on the Termination Date, and after the
Termination Date payable upon demand; provided that the Applicable Margin shall
increase by 2% upon the occurrence and during the continuation of an Event of
Default if the Borrower is required to pay default interest pursuant to Section
2.07(b).
21
(ii) The Borrower shall pay to each Issuing Bank for its own account
such reasonable fees as may from time to time be agreed in writing between
the Borrower and such Issuing Bank.
(c) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees as have been agreed between the Borrower and the Agent.
SECTION 2.05. Optional Termination or Reduction of the Commitments.
The Borrower shall have the right, upon at least three Business Days' notice to
the Agent, to terminate in whole or permanently reduce ratably in part the
Unused Commitments of the Lenders, provided that each partial reduction shall be
in the aggregate amount of US$25,000,000 or an integral multiple of US$5,000,000
in excess thereof.
SECTION 2.06. Repayment of Advances. (a) Advances. The Borrower shall
repay to the Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Advances then outstanding.
(b) Letter of Credit Reimbursements. The obligations of the Borrower
under this Agreement, any Letter of Credit Agreement and any other agreement or
instrument, in each case, relating to any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement, such Letter of Credit Agreement and such other
agreement or instrument under all circumstances, including, without limitation,
the following circumstances (it being understood that any such payment by the
Borrower is without prejudice to, and does not constitute a waiver of, any
rights the Borrower might have or might acquire as a result of the payment by
any Lender of any draft or the reimbursement by the Borrower thereof):
(i) any lack of validity or enforceability of this Agreement, any
Letter of Credit, any Letter of Credit Agreement or any other agreement or
instrument, in each case, relating thereto (all of the foregoing being,
collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any consent
to departure from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any Persons for which any such beneficiary or any
such transferee may be acting), any Issuing Bank, the Agent, any Lender or
any other Person, whether in connection with the transactions contemplated
by the L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(v) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of the Borrower in respect of
the L/C Related Documents; or
22
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
SECTION 2.07. Interest on Advances. (a) Scheduled Interest. The
Borrower shall pay interest on the unpaid principal amount of each Advance owing
to each Lender from the date of such Advance until such principal amount shall
be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of (x) the
Base Rate in effect from time to time plus (y) the Applicable Margin in
effect from time to time plus (z) the Applicable Utilization Fee in effect
from time to time, payable in arrears quarterly on the last day of each
March, June, September and December during such periods and on the date
such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance is
a Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (x) the Eurodollar Rate for
such Interest Period for such Advance plus (y) the Applicable Margin in
effect from time to time plus (z) the Applicable Utilization Fee in effect
from time to time, payable in arrears on the last day of such Interest
Period and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period every three
months from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default under Section 6.01(a) or (f), the Agent may, and upon the
request of the Required Lenders shall, require the Borrower to pay interest
("Default Interest") on (i) the unpaid principal amount of each Advance owing to
each Lender, payable in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on such Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above,
provided, however, that following acceleration of the Advances pursuant to
Section 6.01, Default Interest shall accrue and be payable hereunder whether or
not previously required by the Agent.
SECTION 2.08. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurodollar Rate. If any one or more of the Reference Banks shall not
furnish such timely information to the Agent for the purpose of determining any
such interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks. The Agent shall
give prompt notice to the Borrower and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.07(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing
23
Interest Period therefor, Convert into a Base Rate Advance, and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify the Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than US$25,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
(f) If Moneyline Telerate Markets Page 3750 is unavailable and fewer
than two Reference Banks furnish timely information to the Agent for determining
the Eurodollar Rate for any Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Borrower and the Lenders that
the interest rate cannot be determined for such Eurodollar Rate Advances,
(ii) with respect to Eurodollar Rate Advances, each such Advance will
automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance (or if such Advance is then a
Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate Advances
or to Convert Advances into Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.09. Optional Conversion of Advances. The Borrower may on any
Business Day, upon notice given to the Agent not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.08 and 2.12, Convert all
Advances of one Type comprising the same Borrowing into Advances of the other
Type; provided, however, that any Conversion of Eurodollar Rate Advances into
Base Rate Advances shall be made only on the last day of an Interest Period for
such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(b) and no Conversion of any Advances shall result in
more separate Borrowings than permitted under Section 2.02(b). Each such notice
of a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments of Advances. (a) Optional. The Borrower may,
upon notice at least three Business Days' prior to the date of such prepayment,
in the case of Eurodollar Rate Advances, and not later than 11:00 A.M. (New York
City time) on the date of such prepayment, in the
24
case of Base Rate Advances, to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of the Advances comprising part
of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of US$25,000,000 or an integral multiple of US$5,000,000 in
excess thereof and (y) in the event of any such prepayment of a Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 9.04(c).
(b) Mandatory Prepayments. (i) If the Agent notifies the Borrower on
the second Business Day prior to any interest payment date that the sum of (A)
the aggregate principal amount of all Advances then outstanding plus (B) the
aggregate Available Amount of all Letters of Credit denominated in Dollars then
outstanding plus (C) the Dollar Equivalent in (determined on the third Business
Day prior to such interest payment date) of the aggregate Available Amount of
all Letters of Credit denominated in Euros then outstanding exceeds 103% of the
aggregate Revolving Credit Commitments of the Lenders on such date, the Borrower
shall, within two Business Days after receipt of such notice, prepay the
outstanding principal amount of any Advances owing by the Borrower in an
aggregate amount sufficient to reduce such sum after such payment to an amount
not to exceed 100% of the aggregate Revolving Credit Commitments of the Lenders.
The Agent shall provide such notice to the Borrower at the request of any
Lender.
(ii) Each prepayment made pursuant to this Section 2.10(b) shall be
made together with any interest accrued to the date of such prepayment on the
principal amounts prepaid and, in the case of any prepayment of a Eurodollar
Rate Advance on a date other than the last day of an Interest Period or at its
maturity, any additional amounts which the Borrower shall be obligated to
reimburse to the Lenders in respect thereof pursuant to Section 9.04(c). The
Agent shall give prompt notice of any prepayment required under this Section
2.10(b) to the Borrower and the Lenders.
(c) Letters of Credit. The Borrower shall, on the day that is seven
(7) Business Days prior to the Termination Date, pay to the Agent for deposit in
the L/C Cash Collateral Account (a) an amount in Euros sufficient to cause the
amount of Euros on deposit in the L/C Cash Collateral Account to equal 100% of
the aggregate Available Amount of all Letters of Credit then outstanding
denominated in Euros and (b) an amount in Dollars sufficient to cause the amount
of Dollars on deposit in the L/C Cash Collateral Account to equal 100% of the
aggregate Available Amount of all Letters of Credit then outstanding denominated
in Dollars. Upon the drawing of any such Letter of Credit, to the extent funds
are on deposit in the L/C Cash Collateral Account, such funds shall be applied
to reimburse the Issuing Banks to the extent permitted by applicable law, and if
so applied, then such reimbursement shall be deemed a repayment of the
corresponding Advance in respect of such Letter of Credit. After any such Letter
of Credit shall have expired or been fully drawn upon and all other obligations
of the Borrower thereunder shall have been paid in full, the equivalent amount
deposited in such L/C Cash Collateral Account in respect of such Letter of
Credit shall be promptly returned to the Borrower.
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or agreeing to issue or
of issuing or maintaining or participating in Letters of Credit (excluding for
purposes of this Section 2.11 any such increased costs resulting from (i) Taxes
or Other Taxes (as to which Section 2.14 shall govern) and (ii) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender is organized or has its Applicable Lending Office or any political
25
subdivision thereof), then the Borrower shall from time to time, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender additional amounts sufficient to compensate such Lender
for such increased cost; provided, however, that (i) before making any such
demand, each Lender agrees to use reasonable efforts (consistent with its legal
and regulatory restrictions) to designate a different Applicable Lending Office
if the making of such a designation would avoid the need for, or reduce the
amount of, such increased cost and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender and (ii) such Lender shall,
in making demand under this Section, certify that such Lender is treating
substantially all similarly situated borrowers in a manner that is consistent
with the treatment afforded the Borrower hereunder. A certificate as to the
amount of such increased cost, submitted to the Borrower and the Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the Borrower shall pay to the
Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder; provided, however, that before
making any such demand, each Lender shall, in making demand under this Section,
certify that such Lender is treating substantially all similarly situated
borrowers in a manner that is consistent with the treatment afforded the
Borrower hereunder. A certificate as to such amounts submitted to the Borrower
and the Agent by such Lender shall be conclusive and binding for all purposes,
absent manifest error.
(c) 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 six months prior to the date that such Lender
notifies the Borrower of the change or circumstance giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the change or circumstance
giving rise to such increased costs or reductions is retroactive, then the
six-month period referred to above shall be extended to include the period of
retroactive effect thereof. Any Lender making a claim for compensation under
this Section 2.11 may be required to assign all of its rights and obligations
hereunder upon a request by the Borrower in accordance with Section 9.07.
SECTION 2.12. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar
Rate Advances hereunder, (a) each Eurodollar Rate Advance will automatically,
upon such demand, Convert into a Base Rate Advance, and (b) the obligation of
the Lenders to make Eurodollar Rate Advances or to Convert Advances into
Eurodollar Rate Advances shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist; provided, however, that before making any such demand, each Lender
agrees to use reasonable efforts (consistent with its legal and regulatory
restrictions) to designate a different Eurodollar Lending Office if the making
of such a designation would allow such Lender or its Eurodollar Lending Office
to continue to perform its obligations to make Eurodollar Rate Advances or to
continue to fund or maintain Eurodollar Rate Advances and would not, in
26
the judgment of such Lender, be otherwise disadvantageous to such Lender. Any
Lender that is prohibited from performing its obligations to make Eurodollar
Rate Advances or to continue to fund or maintain Eurodollar Rate Advances may be
required to assign all of its rights and obligations hereunder upon a request by
the Borrower in accordance with Section 9.07.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make
each payment hereunder, irrespective of any right of counterclaim or set-off,
not later than 11:00 A.M. (New York City time) on the day when due in Dollars to
the Agent at the Agent's Account in same day funds. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest, fees or commissions ratably (other than amounts payable
pursuant to Section 2.11, 2.14 or 9.04(c)) to the Lenders for the account of
their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under the Note
held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due to the fullest extent
permitted by law.
(c) All computations of interest based on the Base Rate shall be made
by the Agent on the basis of a year of 365 or 366 days, as the case may be, and
all computations of interest based on the Eurodollar Rate or the Federal Funds
Rate and of fees and Letter of Credit commissions shall be made by the Agent on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest, fees or commissions are payable. Each determination by the
Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or facility fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
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SECTION 2.14. Taxes. (a) Any and all payments by the Borrower to or
for the account of any Lender or the Agent hereunder or under the Notes or any
other documents to be delivered hereunder shall be made, in accordance with
Section 2.13 or the applicable provisions of such other documents, free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the 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 Agent (as
the case may be) is organized or any political subdivision thereof and, 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 (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note or any other documents to be delivered hereunder to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.14) such Lender or the Agent (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 taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or any
other documents to be delivered hereunder or from the execution, delivery or
registration of, performing under, or otherwise with respect to, this Agreement
or the Notes or any other documents to be delivered hereunder (hereinafter
referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed or asserted by any jurisdiction on
amounts payable under this Section 2.14) imposed on or paid by such Lender or
the Agent (as the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender or the Agent (as the case
may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent, at its address referred to in Section 9.02,
the original or a certified copy of a receipt evidencing such payment to the
extent such a receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the Agent. In the case of any payment
hereunder or under the Notes or any other documents to be delivered hereunder by
or on behalf of the Borrower through an account or branch outside the United
States or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect thereof,
the Borrower shall furnish, or shall cause such payor to furnish, to the Agent,
at such address, an opinion of counsel acceptable to the Agent stating that such
payment is exempt from Taxes. For purposes of this subsection (d) and subsection
(e), the terms "United States" and "United States person" shall have the
meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as reasonably requested in writing by
the Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide each of the Agent and the Borrower with two original Internal
Revenue Service Forms W-8BEN or W-8ECI, as appropriate, or any
28
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. If the form
provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which
a Lender assignee becomes a party to this Agreement, the Lender assignor was
entitled to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee
on such date. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service Form W-8BEN or W-8ECI, that the Lender reasonably considers to
be confidential, the Lender shall give notice thereof to the Borrower and shall
not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form, certificate or other document
described in Section 2.14(e) (other than if such failure is due to a change in
law, or in the interpretation or application thereof, occurring subsequent to
the date on which a form, certificate or other document originally was required
to be provided, or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.14(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Borrower shall take such
steps as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 agrees to use reasonable efforts (consistent with its legal
and regulatory restrictions) to change the jurisdiction of its Eurodollar
Lending Office if the making of such a change would avoid the need for, or
reduce the amount of, any such additional amounts that may thereafter accrue and
would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(h) Any Lender making a claim for compensation under this Section 2.14
may be required to assign all of its rights and obligations hereunder upon a
request by the Borrower in accordance with Section 9.07.
(i) In the event a Lender is entitled, on the effective date of an
Assignment or Acceptance, to the benefits of a payment pursuant to this Section
2.14, an assignee or novatee of such Lender shall be entitled to the same
benefits of payment (in addition to any future benefits of payment that may
arise with respect to such assignee) that would have been available to such
Lender had such Lender not entered into the related Assignment and Acceptance
with such assignee or novatee and then only to the extent the relevant amounts
are incurred by such assignee or novatee.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to Section 2.11, 2.14 or 9.04(c)) in excess of its Pro Rata Share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided,
29
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each Lender shall be
rescinded and such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount equal to such
Lender's ratable share (according to the proportion of (i) the amount of such
Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.16. Evidence of Debt. (a) 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 Advance owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder in respect of
Advances. The Borrower agrees that upon notice by any Lender to the Borrower
(with a copy of such notice to the Agent) to the effect that a Note is required
or appropriate in order for such Lender to evidence (whether for purposes of
pledge, enforcement or otherwise) the Advances owing to, or to be made by, such
Lender, the Borrower shall promptly execute and deliver to such Lender a Note
payable to the order of such Lender in a principal amount up to the Revolving
Credit Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.07(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if appropriate, the Interest Period applicable thereto, (ii) the terms of
each Assignment and Acceptance delivered to and accepted by it, (iii) the amount
of any principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder and (iv) the amount of any sum received by
the Agent from the Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant
to subsection (b) above, and by each Lender in its account or accounts pursuant
to subsection (a) above, shall be prima facie evidence of the amount of
principal and interest due and payable or to become due and payable from the
Borrower to, in the case of the Register, each Lender and, in the case of such
account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an
entry, or any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the obligations of the
Borrower under this Agreement.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Borrower and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied:
(a) There shall have occurred no Material Adverse Change since June
30, 2002.
30
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions contemplated
hereby.
(c) Nothing shall have come to the attention of the Lenders during the
course of their due diligence investigation to lead them to believe that
the Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect; without limiting the generality of the
foregoing, the Lenders shall have been given such access to the management,
records, books of account, contracts and properties of each Loan Party and
its Subsidiaries as they shall have requested.
(d) All governmental and third party consents and approvals necessary
in connection with the transactions contemplated hereby shall have been
obtained (without the imposition of any conditions that are not acceptable
to the Lenders) and shall remain in effect, and no law or regulation shall
be applicable in the reasonable judgment of the Lenders that restrains,
prevents or imposes materially adverse conditions upon the transactions
contemplated hereby.
(e) The Borrower shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and expenses of the
Agent and the Lenders (including the accrued fees and expenses of counsel
to the Agent).
(g) On the Effective Date, the following statements shall be true and
the Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of the Parent Guarantor, dated the
Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01
are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default.
(h) The Agent shall have received on or before the Effective Date the
following, each dated such day, in form and substance satisfactory to the
Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent requested
by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving this Agreement and the
documents executed and delivered in connection herewith, and of all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement.
(iii) A certificate of an Authorized Officer of each Loan Party
certifying the names and true signatures of the officers of the
Authorized Officers of such Loan Party and, in the case of each Loan
Party that is incorporated under the laws of a jurisdiction other than
the United States, a power of attorney granted by such Loan Party
appointing
31
the Person or Persons authorized to execute and deliver this Agreement
and the other documents to be delivered hereunder.
(iv) In relation to each Loan Party that is subject to the
Australian Corporations Law: (A) such forms lodged with the Australian
Securities and Investment Commission in accordance with the Australian
Corporations Law notifying the Australian Securities and Investment
Commission of the particulars or any change in the particulars of the
officers of such Loan Party as will evidence the appointment of the
current officers of such Loan Party; and (B) before, but not earlier
than two Business Days before the execution of this Agreement, a
certificate of a director and secretary of such Loan Party as
Authorized Officers of such Loan Party substantially in the form of
Exhibit C-4 from each such Loan Party that it is a public company for
the purposes of Chapter 2E of the Australian Corporations Law and is a
Guarantor and otherwise complying with Chapter 2E of the Australian
Corporations Law.
(v) A favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for
Borrower and each of the Guarantors, substantially in the form of
Exhibit D-1 hereto and as to such other matters as any Lender through
the Agent may reasonably request.
(vi) A favorable opinion of Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for
Parent Guarantor, substantially in the form of Exhibit D-2 hereto and
as to such other matters as any Lender through the Agent may
reasonably request.
(vii) A favorable opinion of Shearman & Sterling LLP, counsel for
the Agent, in form and substance satisfactory to the Agent.
(i) The Loan Parties shall have terminated the commitments of the
lenders and repaid or prepaid in full all amounts outstanding under the
Revolving Credit Agreement dated as of May 19, 1993 among the Borrower,
certain other borrowers and guarantors parties thereto, the lenders parties
thereto and Citibank, N.A., as administrative agent. By execution of this
Agreement, each of the Lenders that is a lender under the credit agreement
referred to above hereby waives the requirement set forth in Section 2.04
of such credit agreement of three business days' prior notice to the
termination of its commitments thereunder.
SECTION 3.02. Conditions Precedent to Each Borrowing, Issuance and
Renewal. The obligation of each Lender to make an Advance (other than an Advance
made by an Issuing Bank or a Lender pursuant to Section 2.03(c)) on the occasion
of each Borrowing, and the obligation of each Issuing Bank to issue a Letter of
Credit or renew a Letter of Credit, shall be subject to the conditions precedent
that the Effective Date shall have occurred and on the date of such Borrowing or
issuance or renewal (a) the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing, Notice of Issuance or Notice of
Renewal and the acceptance by the Borrower of the proceeds of such Borrowing or
of such Letter of Credit or the renewal of such Letter of Credit shall
constitute a representation and warranty by the Borrower that both on the date
of such notice and on the date of such Borrowing or issuance or renewal such
statements are true):
(i) the representations and warranties contained in Section 4.01 are
correct on and as of such date, before and after giving effect to such
Borrowing or issuance or renewal and to the application of the proceeds
therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from
such Borrowing or issuance or from the application of the proceeds
therefrom, that constitutes a Default;
32
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Loan Parties. Each
Loan Party represents and warrants as follows:
(a) Such Loan Party (i) is a corporation duly organized, validly
existing and, in the case of each Loan Party incorporated under the laws of
a State of the United States, in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and, in the case
of each Loan Party incorporated under the laws of a State of the United
States, is in good standing as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the conduct of
its business requires it to so qualify or be licensed, except, in each
case, to the extent the failure to be so qualified and in good standing
would not have a Material Adverse Effect and (iii) has all requisite
corporate power and authority to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted.
(b) The execution, delivery and performance by each Loan Party of this
Agreement and the other transactions contemplated hereby, are within such
Loan Party's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Loan Party's Constitutive
Documents, (ii) violate any applicable law or contractual restriction
binding on or affecting any Loan Party, any of its Subsidiaries or any of
their properties or (iii) result in or require the creation or imposition
of any Lien upon or with respect to any of the properties of any Loan Party
or any of its Subsidiaries.
(c) All authorizations or approvals and other actions by, and all
notices to and filings with, any governmental authority or regulatory body
or any other third party that are required to be obtained or made by the
Loan Parties for (i) the due execution, delivery, recordation, filing or
performance by any Loan Party of this Agreement, or for the consummation of
the other transactions contemplated hereby or (ii) the exercise by the
Agent or any Lender of its rights under this Agreement have been duly
obtained, taken, given or made and are in full force and effect.
(d) This Agreement has been duly executed and delivered by each Loan
Party party hereto. This Agreement is the legal, valid and binding
obligation of each Loan Party party hereto, enforceable against such Loan
Party in accordance with its terms.
(e) The Consolidated statement of financial position of the Parent
Guarantor as at June 30, 2002, and the related Consolidated statement of
financial performance and statement of cash
33
flow of the Parent Guarantor for the fiscal year then ended, accompanied by
an opinion of Ernst & Young, independent public accountants, copies of
which have been furnished to each Lender, fairly present the Consolidated
financial condition of the Parent Guarantor as at such date and the
Consolidated results of the operations of the Parent Guarantor for the
period ended on such date, all in accordance with generally accepted
accounting principles applied on a consistent basis, and since June 30,
2002, there has been no Material Adverse Change.
(f) Neither the Information Memorandum nor any other information,
exhibit or report furnished by any Loan Party to the Agent or any Lender in
connection with the negotiation of this Agreement or pursuant to the terms
of this Agreement, together with the information contained in the public
filings of the Parent Guarantor, contained when made any untrue statement
of a material fact or omitted to state a material fact necessary to make
the statements made therein not misleading when made.
(g) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of their Subsidiaries, including any
Environmental Action, pending or, to the best knowledge of each Loan Party,
threatened before any court, governmental agency or arbitrator that would
be reasonably likely to be adversely determined and if so to have a
Material Adverse Effect.
(h) No Loan Party is engaged in the business of extending credit for
the purpose of purchasing or carrying Margin Stock, and no proceeds of any
Advance will be used to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin
Stock.
(i) Following application of the proceeds of each Advance, not more
than 25 percent of the value of the assets (either of any Loan Party or of
the Reporting Group on a Consolidated basis) subject to the provisions of
Section 5.02(a) or subject to any restriction contained in any agreement or
instrument between any Loan Party and any Lender or any Affiliate of any
Lender relating to Debt and within the scope of Section 6.01(e) will be
Margin Stock.
(j) No Loan Party is an "investment company," or "controlled" by an
"investment company," as such terms are defined in the U.S. Investment
Company Act of 1940, as amended. Neither the making of any Advances nor the
application of the proceeds or repayment thereof by any Loan Party, nor the
consummation of the other transactions contemplated hereby, will violate
any provision of such Act or any rule, regulation or order of the U.S.
Securities and Exchange Commission thereunder.
(k) Each Loan Party is Solvent.
(l) The Obligations of each Loan Party under this Agreement constitute
unconditional general obligations of such Loan Party ranking at least pari
passu with all other Senior Debt of such Loan Party, other than any Senior
Debt secured by Permitted Liens.
(m) The entry into and performance by the Parent Guarantor of its
obligations under this Agreement is for its commercial benefit and is in
its commercial interests.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
34
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, each Loan Party
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all material
applicable laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and Environmental Laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent
or overdue, (i) all taxes imposed upon it or upon its property and (ii) all
lawful claims that, if unpaid, might by law become a Lien upon its
property, except to the extent that, in respect of clauses (i) and (ii),
the failure to pay and discharge such taxes and claims would not be
reasonably likely to have a Material Adverse Effect; provided, however,
that neither any Loan Party nor any of its Subsidiaries shall be required
to pay or discharge any such tax or lawful claim that is being contested in
good faith and by proper proceedings and as to which appropriate reserves
are being maintained, but only so long as such contest could not subject
any Lender to (A) any criminal penalty or liability or (B) any material
civil penalty or liability for which such Lender is not indemnified under
Section 9.04.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is consistent with prudent business practice for the industries in which
such Loan Party or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain
its corporate existence, rights (per statute and its corporate Constitutive
Documents) and franchises; provided, however, that each Loan Party may
consummate any merger or consolidation permitted under Section 5.02(c); and
provided further that no Loan Party shall be required to preserve any right
or franchise if the Board of Directors of such Loan Party shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of such Loan Party and that the loss thereof is not
disadvantageous in any material respect to such Loan Party or the Lenders.
(e) Visitation Rights. During normal business hours, and so long as no
Event of Default has occurred and is continuing, upon ten (10) days prior
notice and only twice a year, permit the Agent or any of the Lenders or any
agents or representatives thereof, to examine the records and books of
account of, and visit during normal business hours the properties of, such
Loan Party and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of such Loan Party and any of its Subsidiaries with
any of their officers or directors and with their independent certified
public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
such Loan Party and each such Subsidiary in accordance with generally
accepted accounting principles and laws applicable to such Person in effect
from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its material
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
35
(h) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all material transactions otherwise permitted
under this Agreement with any of their Affiliates on terms that are fair
and reasonable and no less favorable to such Loan Party or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a Person
not an Affiliate, other than (i) transactions between or among Parent
Guarantor and/or between or among the members of the Reporting Group, (ii)
Permitted Film Financings, (iii) any arrangements with officers, directors,
representatives or other employees of Parent Guarantor and its Subsidiaries
relating specifically to employment, (iv) loans to employees of any member
of the Reporting Group, (v) the payment of dividends, (vi) transactions
entered into prior to the date hereof or contemplated by any agreement
entered into prior to the date hereof, (vii) Investments in an Affiliate in
consideration for the issuance of ordinary shares or other equity capital
(other than Redeemable Preferred Stock), and (viii) transactions with any
of their Affiliates conducted in the ordinary course of business of such
Loan Party or Subsidiary except to the extent that such transaction is in
connection with (A) the creation, incurrence, assumption or existence of
any Lien or Debt, (B) any merger or consolidation, (C) the making or
holding of any Investment or (D) the prepayment, redemption, purchase,
defeasement or other satisfaction of any Debt; provided, however, that,
notwithstanding the foregoing, transactions entered into by any member of
the Reporting Group with any Affiliate thereof (a "Subject Affiliate"),
which transactions are entered into by other shareholders or partners of
such Subject Affiliate that are not otherwise themselves Affiliates of such
member and on the same terms and for the same consideration (taking into
account their relative percentage ownership of such Subject Affiliate) as
such member of the Reporting Group shall be deemed to have been entered
into on an arm's-length basis
(i) Reporting Requirements. Furnish to the Lenders:
(i) Default Notice. As soon as possible and in any event within
five days after a Responsible Officer becomes aware of a Default that
is continuing on the date of such statement, a statement of the chief
financial officer, deputy chief financial officer or Group General
Counsel of the Parent Guarantor setting forth details of such Default
and the action that the Reporting Group has taken and proposes to take
with respect thereto.
(ii) Quarterly Financials. As soon as available and in any event
within 55 days after the end of each of the first three quarters of
each fiscal year, a Consolidated statement of financial position of
the Parent Guarantor as of the end of such quarter and Consolidated
statement of financial performance and statement of cash flow of the
Parent Guarantor for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, setting forth in
comparative form, in the case of the statement of financial position,
the figures for the preceding fiscal year end from the audited
statement of financial position for such fiscal year and, in the case
of the statement of financial performance and statement of cash flow,
the corresponding figures for the corresponding fiscal period in the
preceding fiscal year, all in reasonable detail consistent with the
Parent Guarantor's public filings and duly certified (subject to
year-end audit adjustments) by the chief financial officer or deputy
chief financial officer of the Parent Guarantor as having been
prepared in accordance with generally accepted accounting principles,
together with a Compliance Certificate.
(iii) Annual Financials. As soon as available and in any event
within 100 days after the end of each fiscal year (i) a copy of the
annual audit report for such year for the Parent Guarantor, including
therein a Consolidated statement of financial position of the Parent
Guarantor as of the end of such fiscal year and Consolidated statement
of financial performance and statement of cash flow of the Parent
Guarantor for such fiscal
36
year, in each case accompanied by an unqualified (except to the extent
any qualification stated therein relates solely to the effect of any
change in generally accepted accounting principles applicable to the
Parent Guarantor) opinion of Ernst & Young or other independent public
accountants of recognized standing acceptable to the Required Lenders,
and (ii) a Compliance Certificate.
(iv) Litigation. Promptly and in any event within 10 days after a
Responsible Officer becomes aware of the commencement thereof, notice
of all actions, suits, investigations, litigation and proceedings
before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, (i) affecting
any Loan Party or any of its Subsidiaries of the type described in
Section 4.01(i) or (ii) that challenge the transactions contemplated
by this Agreement (including, without limitation, the rights of any
Borrower to borrow hereunder, the use of the proceeds of any Borrowing
hereunder or the performance by any Loan Party of its Obligations
hereunder) or that base any claim against any Loan Party on such
transactions.
(v) Securities Reports. Promptly and in any event within 15 days
after the sending or filing thereof, copies of all material regular,
periodic and special reports, and all registration statements, that
any member of the Reporting Group files with the Securities and
Exchange Commission or any governmental authority that may be
substituted therefor, or with any national securities exchange.
(vi) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of each member of the Reporting Group as any
Lender may, through the Agent, from time to time reasonably request.
(j) Additional Guarantors. (i) Promptly cause to become a Guarantor
under this Agreement by execution of a guaranty supplement in substantially
the form of Exhibit E hereto (each, a "Guaranty Supplement") (A) each of
its Subsidiaries that, as determined by reference to the annual audited
Consolidated statement of financial performance and statement of cash flow
of the Parent Guarantor for the fiscal year ended immediately prior to the
date of determination, is a Material Subsidiary, provided that, if the
Consolidated assets of the Parent Guarantor attributable to the Guarantors
aggregate less than the aggregate principal amount of all Consolidated
indebtedness of the Parent Guarantor that is not by its terms subordinated
to the Obligations of the Loan Parties under this Agreement, in each case
as determined by reference to the annual audited Consolidated statement of
financial position of the Parent Guarantor, then the Loan Parties shall
promptly cause to become Guarantors such additional Subsidiaries (other
than those Subsidiaries expressly excluded under sub-clauses (a), (b) and
(c) of the definition of Material Subsidiary) as would cause the total
assets of the Parent Guarantor so attributable to the Guarantors hereunder
to exceed the aggregate principal amount of such indebtedness, (B) any
Material Subsidiary that is, immediately after the initial Borrowing, and
any Subsidiary that thereafter becomes, a guarantor of any Public Senior
Debt, (C) any Material Subsidiary that is required to be added as a
Guarantor pursuant to Section 7.06 and (D) the Parent Guarantor. Upon the
execution and delivery by any Person of a Guaranty Supplement, (a) such
Person shall be referred to as an "Additional Guarantor" and shall become
and be a Guarantor hereunder, and each reference in this Agreement to a
"Guarantor" shall also mean and be a reference to such Additional
Guarantor, and (b) each reference herein to "this Agreement", "hereunder",
"hereof" or words of like import referring to this Agreement, and each
reference in any other Loan Document to this Agreement, "thereunder",
"thereof" or words of like import referring to this Agreement, shall mean
and be a reference to this Agreement as supplemented by such Guaranty
Supplement.
37
(ii) In the case of each Person that becomes a Guarantor under
this Agreement, the Borrower shall ensure that (x) before the
execution of any Guaranty Supplement, the Agent receives the items
referred to in Section 3.01(h) in respect of the Additional Guarantor
and its Guaranty Supplement, and a certificate of an Authorized
Officer of the Borrower with respect to the representations and
warranties in Section 4.01; and (y) all laws in connection with the
execution, validity and enforceability of a Guaranty Supplement have
been complied with.
SECTION 5.02. Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, no Loan Party will:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
or permit any of its Subsidiaries to assign, any right to receive income,
other than:
(i) Liens existing on the date hereof ("Existing Liens"), and
Liens replacing, extending or renewing any such Existing Liens upon or
in the same property theretofore subject to such Existing Lien or the
replacement, extension or renewal (without increase in the amount or
change in any direct or contingent obligor) of the Debt secured by
such Existing Lien;
(ii) Permitted Liens;
(iii) Liens securing Debt and other Obligations that are not
otherwise permitted to be secured pursuant to this Section 5.02(a) and
Attributable Debt, provided that the value of the aggregate assets of
the Reporting Group encumbered by all such Liens shall not exceed 10%
of the Consolidated Tangible Assets of the Reporting Group;
(iv) Liens on the assets of Film Special Purpose Vehicles
securing Debt incurred for the purpose of effecting Permitted Film
Financings;
(v) Liens created in favor of (x) a producer or supplier of
television programming or films or (y) any other Person in connection
with the financing of the production, distribution, acquisition,
marketing, licensing and/or syndication of television programming or
films, in each case above on or with respect to distribution revenues
and/or distribution rights which arise from or are attributable to
such television programming or films;
(vi) Liens under construction, performance and similar bonding
arrangements entered into in the ordinary course of business;
(vii) Liens on property purchased after the date of this
Agreement provided that (A) any such Lien (x) is created solely for
the purpose of securing Debt incurred to finance the cost (including
the cost of construction) of the item of property subject thereto and
such Lien is created prior to, at the time of, or within 270 days
after the later of, the acquisition, the completion of construction or
the commencement of the full operation of such property, or for the
purpose of securing Debt incurred to refinance any Debt previously so
secured or (y) existed on such property at the time of its acquisition
(other than Liens created in contemplation of such acquisition that
were not incurred to finance the acquisition of such property), (B)
the principal amount of Debt secured by any Lien
38
described in clause (A)(x) above does not exceed 100% of such cost and
(C) such Lien does not extend to or cover any other property other
than such item or property and any improvements on such item;
(viii) in the case of a Person becoming a member of the Reporting
Group after the date of this Agreement, any Lien with respect to the
assets of such Person at the time it became a member of the Reporting
Group, provided that such Lien is not created in contemplation of, or
in connection with, such Person becoming a member of the Reporting
Group;
(ix) Liens on accounts receivable in connection with any
financing that would not cause the Reporting Group to be in violation
of Section 5.03
(x) Liens created by Loan Parties in favor of other Loan Parties
or Liens created by members of the Reporting Group that are not Loan
Parties in favor of other members of the Reporting Group; and
(xi) any extensions, renewals or replacements of any of the Liens
referred to in the foregoing clauses (iv), (vii) and (viii), provided
such extensions, renewals or replacements are limited to all or part
of the property securing the original Lien or any replacement of such
property.
(b) Mergers, Etc. Merge into or consolidate with any Person or permit
any Person to merge into it, or permit any of its Subsidiaries to do so,
unless (i) to the extent such merger or consolidation is with the Borrower
or the Parent Guarantor, (A) the Borrower or the Parent Guarantor, as
applicable, shall be the surviving corporation or (B) the entity into which
the Borrower or the Parent Guarantor, as applicable is merged or
consolidated, immediately prior to such merger or consolidation has no
material assets or liabilities and immediately after such merger of
consolidation shall (x) directly or indirectly own substantially all of the
assets of the Borrower or the Parent Guarantor, as applicable immediately
preceding such merger or consolidation and (y) duly assume all of the
Borrower's or the Parent Guarantor's, as applicable, obligations hereunder
in form and substance satisfactory to the Agent and (ii) to the extent such
merger or consolidation is with a Guarantor other than the Parent
Guarantor, the surviving Person shall be a Subsidiary of the Parent
Guarantor and a corporation organized in the same country of incorporation
as such Guarantor prior to the merger or consolidation if such surviving
corporation shall, at the effective time of such merger or consolidation,
assume such Guarantor's Obligations under this Agreement and the
performance of its covenants hereunder in writing satisfactory in form and
substance to the Required Lenders; provided, however, that, in each case,
that no Default shall have occurred and be continuing at the time of such
proposed transaction or would result therefrom.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as permitted or required by (i) the generally
accepted accounting principles applicable in the jurisdiction in which such
Person is organized on the date of this Agreement or (ii) as required by
law, provided that the Parent Guarantor and its Subsidiaries may change
their respective accounting policies or reporting practices to conform to
generally accepted accounting principles as in effect in the United States
but, in such event, each Compliance Certificate delivered to the Lenders
pursuant to Sections 5.01(i) and (c) shall be provided together with a
reconciliation to GAAP in respect of the information reported therein.
39
(d) Change in Nature of Business. Change, or permit any of its
Subsidiaries to change, the nature of the business of the Reporting Group
taken as a whole as carried on at the date hereof.
SECTION 5.03. Financial Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder, the Parent Guarantor
will:
(a) Maintain a ratio (the "Operating Income Leverage Ratio")
determined on the last day of each fiscal quarter of the Parent Guarantor
for the Rolling Period then ended of (i) the aggregate principal amount,
without duplication, of (A) Consolidated Debt of the Parent Guarantor
described in clauses (a), (c) and (e) of the definition of Debt, plus (B)
Excess Guaranty Debt plus (C) preference shares that constitute debt under
GAAP to (ii) Consolidated Adjusted Operating Income of the Parent Guarantor
for such Rolling Period of not more than 4.5.
For purposes of calculating the aggregate principal amount of
Consolidated Debt of the Parent Guarantor on any such date, (A) there shall
be excluded from such calculation any amount in respect of Investment
Preferred Stock, Permitted Film Financings and Negative Pickup Arrangements
and Capitalized Lease Obligations incurred in connection with the leasing
of satellite transponders and (B) the currency exchange rate used for such
calculation shall be the rate used in the annual or quarterly statement of
financial position for such date; provided, however, that, if the Parent
Guarantor determines that an average exchange rate is a more accurate
reflection of the value of such currency over such Rolling Period, the
currency exchange rate used may be, at the option of the Parent Guarantor,
the currency exchange rate used for the income statements of the Parent
Guarantor for such fiscal quarter.
(b) Interest Coverage Ratio. Maintain a ratio (the "Interest Coverage
Ratio") of Consolidated Adjusted Operating Income of the Parent Guarantor
for each Rolling Period to Consolidated Interest Expense of the Parent
Guarantor for such Rolling Period of not less than 3.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) any Loan Party shall fail to pay (i) any principal of any Advance
when the same becomes due and payable or (ii) any amount of interest on any
Advance or any other payment under this Agreement within five (5) days
after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with this Agreement shall prove to
have been incorrect in any material respect when made; or
(c) any member of the Reporting Group shall fail to perform or observe
any term, covenant or agreement contained in clauses (d), (e), (h) and (i)
of Section 5.01, Section 5.02 or Section 5.03; or
(d) any member of the Reporting Group shall fail to perform any other
term, covenant or agreement contained in this Agreement on its part to be
performed or observed if
40
such failure shall remain unremedied for 15 days after the date on which
written notice thereof shall have been given to the Parent Guarantor by the
Agent or any Lender; or
(e) any member or members of the Reporting Group shall fail to pay any
principal of, premium or interest on or any other amount payable in respect
of any Debt that is outstanding in a Dollar Equivalent principal amount
equal to or greater than US$100,000,000 (but excluding Debt outstanding
under this Agreement) of such member or members, when the same becomes due
and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after
the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity
of such Debt or otherwise to cause, or to permit the holder thereof to
cause, such Debt to mature; or any such Debt shall be declared by the
holders thereof to be due and payable or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or an offer to prepay, redeem, purchase or defease
such Debt shall be required by the holders thereof to be made, in each case
prior to the stated maturity thereof; or
(f) any Loan Party shall not pay its debts generally as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors;
or any proceeding shall be instituted by or against any Loan Party seeking
(otherwise than for the purpose of a solvent amalgamation or
reconstruction) to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver, receiver and manager, trustee, administrator, custodian or other
similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted
by it) that is being diligently contested by it in good faith, either such
proceeding shall remain undismissed or unstayed for a period of 60 days or
any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of
a receiver, receiver and manager, trustee, administrator, custodian or
other similar official for, it or any substantial part of its property)
shall occur; or any Loan Party shall take any corporate action to authorize
or any shareholder resolution shall be taken to effect any of the actions
set forth above in this subsection (f); or any event analagous to or having
a substantially similar effect to any of the events specified in this
subsection (f), other than any solvent reorganization, shall occur under
the laws of any applicable jurisdiction with respect to any Loan Party; or
(g) any judgments or orders shall be rendered against any member or
members of the Reporting Group for the payment of money in a Dollar
Equivalent amount in excess of US$150,000,000 in the aggregate and either
(i) enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 30 consecutive
days during which a stay of enforcement of any such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any
member of the Reporting Group that would be reasonably likely to have a
material adverse effect on the business, condition (financial or
otherwise), operations, performance or properties of the Reporting Group
taken as a whole, and there shall be any period of 30 consecutive days
during
41
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(i) this Agreement shall for any reason cease to be valid and binding
on or enforceable against any Loan Party in any material respect, or any
such Loan Party shall so state in writing; or
(j) (A) K. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, while alive and not mentally or physically
incapacitated, ceases to be actively involved in the management of the
Reporting Group; or (B) the ▇▇▇▇▇▇▇ Family ceases to hold or control, in
the aggregate, shares or other stock representing at least 20% of the
voting rights of the Parent Guarantor; or (C) any Person not controlled by
the ▇▇▇▇▇▇▇ Family shall control or be entitled to control by contract or
otherwise a percentage of the equity voting capital of the Parent Guarantor
greater than that held by the ▇▇▇▇▇▇▇ Family at such time. For the purposes
of this clause (j): (1) a share shall be deemed held by the ▇▇▇▇▇▇▇ Family
if it is held by or on behalf of any one or more of the following: (x) K.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, his wife, parent or more remote forebear, child or more
remote issue, or brother or sister or child or more remote issue of a
brother or sister; or (y) any Person directly or indirectly controlled by
one or more of the members of the ▇▇▇▇▇▇▇ Family described above (a
"Controlled Person"); and (2) a trust and the trustees of such trust shall
be deemed to be controlled by any one or more members of the ▇▇▇▇▇▇▇ Family
if a majority of the trustees of such trust are members of the ▇▇▇▇▇▇▇
Family or may be removed or replaced by any one or more of the members of
the ▇▇▇▇▇▇▇ Family and/or Controlled Persons; or
(k) Any Loan Party or any of its ERISA Affiliates shall incur, or
shall be reasonably likely to incur liability in excess of US$150,000,000
in the aggregate as a result of one or more of the following: (i) the
occurrence of any ERISA Event; (ii) the partial or complete withdrawal of
such Loan Party or any of its ERISA Affiliates from a Multiemployer Plan;
or (iii) the reorganization or termination of a Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances (other than Advances by an Issuing
Bank or a Lender pursuant to Section 2.03(c)) and of the Issuing Banks to issue
Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the Advances, all interest
thereon and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Advances, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the Borrower; provided, however, that in the event of an actual or deemed
entry of an order for relief with respect to the Borrower under the Federal
Bankruptcy Code, (A) the obligation of each Lender to make Advances (other than
Advances by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and of the
Issuing Banks to issue Letters of Credit shall automatically be terminated and
(B) the Advances, all such interest and all such amounts shall automatically
become and be due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Agent may with the consent, or shall at the request, of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, (a) pay to the Agent on behalf of the Lenders in same
day funds at the Agent's Office, for deposit in the L/C Cash Collateral Account,
an amount equal to the aggregate Available Amount of all Letters of Credit then
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outstanding or (b) make such other arrangements in respect of the outstanding
Letters of Credit as shall be acceptable to the Required Lenders; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the Federal Bankruptcy Code, the Borrower
will pay to the Agent on behalf of the Lenders in same day funds at the Agent's
Office, for deposit in the L/C Cash Collateral Account, an amount equal to the
aggregate Available Amount of all Letters of Credit then outstanding, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower. If at any time the Agent determines that any
funds held in the L/C Cash Collateral Account are subject to any right or claim
of any Person other than the Agent and the Lenders or that the total amount of
such funds is less than the aggregate Available Amount of all Letters of Credit,
the Borrower will, forthwith upon demand by the Agent, pay to the Agent, as
additional funds to be deposited and held in the L/C Cash Collateral Account, an
amount equal to the excess of (a) such aggregate Available Amount over (b) the
total amount of funds, if any, then held in the L/C Cash Collateral Account that
the Agent determines to be free and clear of any such right and claim. Upon the
drawing of any Letter of Credit, to the extent funds are on deposit in the L/C
Cash Collateral Account, such funds shall be applied to reimburse the Issuing
Banks to the extent permitted by applicable law. After all such Letters of
Credit shall have expired or been fully drawn upon and all other Obligations of
the Borrower hereunder and under the Notes shall have been paid in full, the
balance, if any, in such L/C Cash Collateral Account shall be returned to the
Borrower.
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty; Limitation of Liability. (a) Each Guarantor,
jointly and severally, hereby absolutely, unconditionally and irrevocably
guarantees the punctual payment when due, whether at scheduled maturity or on
any date of a required prepayment or by acceleration, demand or otherwise, of
all Obligations of each other Loan Party now or hereafter existing under or in
respect of the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premiums, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such Obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including, without
limitation, fees and expenses of counsel) incurred by the Agent or any Lender in
enforcing any rights under this Guaranty or any other Loan Document. Without
limiting the generality of the foregoing, each Guarantor's liability shall
extend to all amounts that constitute part of the Guaranteed Obligations and
would be owed by any other Loan Party to the Agent or any Lender under or in
respect of the Loan Documents but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party.
(b) Each Guarantor, and by its acceptance of this Guaranty, the Agent
and each Lender, hereby confirms that it is the intention of all such
Persons that this Guaranty and the Obligations of each Guarantor hereunder
not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the
extent applicable to this Guaranty and the Obligations of each Guarantor
hereunder. To effectuate the foregoing intention, the Agent, the Lenders
and the Guarantors hereby irrevocably agree that the Obligations of each
Guarantor that is a Subsidiary of the Borrower under this Guaranty at any
time shall be limited to the maximum amount as will result in the
Obligations of such Guarantor under this Guaranty not constituting a
fraudulent transfer or conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably agrees that
in the event any payment shall be required to be made to the Agent or any
Lender under this Guaranty or any
43
other guaranty, such Guarantor will contribute, to the maximum extent
permitted by law, such amounts to each other Guarantor and each other
guarantor so as to maximize the aggregate amount paid to the Agent and the
Lenders under or in respect of the Loan Documents.
SECTION 7.02. Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Lender with respect thereto. The Obligations of each Guarantor
under or in respect of this Guaranty are independent of the Guaranteed
Obligations or any other Obligations of any other Loan Party under or in respect
of the Loan Documents, and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Borrower or any other Loan Party or
whether the Borrower or any other Loan Party is joined in any such action or
actions. The liability of each Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now have or hereafter acquire in
any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure
from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to
any Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral
or any other collateral, or any taking, release or amendment or waiver of,
or consent to departure from, any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral,
or proceeds thereof, to all or any of the Guaranteed Obligations, or any
manner of sale or other disposition of any Collateral or any other
collateral for all or any of the Guaranteed Obligations or any other
Obligations of any Loan Party under the Loan Documents or any other assets
of any Loan Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of the Agent or any Lender to disclose to any Loan
Party any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other
Loan Party now or hereafter known to the Agent or such Lender (each
Guarantor waiving any duty on the part of the Agent and the Lenders to
disclose such information);
(g) the failure of any other Person to execute or deliver this
Guaranty, any Guaranty Supplement or any other guaranty or agreement or the
release or reduction of liability of any Guarantor or other guarantor or
surety with respect to the Guaranteed Obligations; or
44
(h) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
the Agent or any Lender that might otherwise constitute a defense available
to, or a discharge of, any Loan Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Lender or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
SECTION 7.03 Waivers and Acknowledgments. (a) Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Agent or any Lender protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an
election of remedies by the Agent or any Lender that in any manner impairs,
reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of such
Guarantor or other rights of such Guarantor to proceed against any of the
other Loan Parties, any other guarantor or any other Person or any
collateral and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the Obligations of such Guarantor
hereunder.
(d) Each Guarantor hereby unconditionally and irrevocably waives any
duty on the part of the Agent or any Lender to disclose to such Guarantor
any matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other
Loan Party or any of its Subsidiaries now or hereafter known by the Agent
or such Lender.
(e) Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated
by the Loan Documents and that the waivers set forth in Section 7.02 and
this Section 7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower, any other Loan Party or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's Obligations under or in respect of this Guaranty or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Agent or any Lender against the
Borrower, any other Loan Party or any other insider guarantor or any Collateral,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Borrower, any other Loan Party or any other insider guarantor,
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security on account of such claim, remedy or right, unless
and until all of the
45
Guaranteed Obligations and all other amounts payable under this Guaranty shall
have been paid in full in cash, all Letters of Credit shall have expired or been
terminated and the Commitments shall have expired or been terminated. If any
amount shall be paid to any Guarantor in violation of the immediately preceding
sentence at any time prior to the latest of (a) the payment in full in cash of
the Guaranteed Obligations and all other amounts payable under this Guaranty,
(b) the Termination Date and (c) the latest date of expiration or termination of
all Letters of Credit, such amount shall be received and held in trust for the
benefit of the Agent and the Lenders, shall be segregated from other property
and funds of such Guarantor and shall forthwith be paid or delivered to the
Agent in the same form as so received (with any necessary endorsement or
assignment) to be credited and applied to the Guaranteed Obligations and all
other amounts payable under this Guaranty, whether matured or unmatured, in
accordance with the terms of the Loan Documents, or to be held as Collateral for
any Guaranteed Obligations or other amounts payable under this Guaranty
thereafter arising. If (i) any Guarantor shall make payment to the Agent or any
Lender of all or any part of the Guaranteed Obligations, (ii) all of the
Guaranteed Obligations and all other amounts payable under this Guaranty shall
have been paid in full in cash, (iii) the Termination Date shall have occurred
and (iv) all Letters of Credit shall have expired or been terminated, the Agent
and the Lenders will, at such Guarantor's request and expense, execute and
deliver to such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
such Guarantor of an interest in the Guaranteed Obligations resulting from such
payment made by such Guarantor pursuant to this Guaranty.
SECTION 7.05. Subordination. Each Guarantor hereby subordinates any
and all debts, liabilities and other obligations owed to such Guarantor by each
other Loan Party (the "Subordinated Obligations") to the Guaranteed Obligations
to the extent and in the manner hereinafter set forth in this Section 7.06:
(a) Prohibited Payments, Etc. Except during the continuance of a
Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), each Guarantor
may receive regularly scheduled payments from any other Loan Party on
account of the Subordinated Obligations. After the occurrence and during
the continuance of any Default (including the commencement and continuation
of any proceeding under any Bankruptcy Law relating to any other Loan
Party), however, unless the Required Lenders otherwise agree, no Guarantor
shall demand, accept or take any action to collect any payment on account
of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law relating to any other Loan Party, each Guarantor agrees
that the Agent and the Lender shall be entitled to receive payment in full
in cash of all Guaranteed Obligations (including all interest and expenses
accruing after the commencement of a proceeding under any Bankruptcy Law,
whether or not constituting an allowed claim in such proceeding ("Post
Petition Interest")) before such Guarantor receives payment of any
Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), each Guarantor
shall, if the Agent so requests, collect, enforce and receive payments on
account of the Subordinated Obligations as trustee for the Agent and the
Lenders and deliver such payments to the Agent on account of the Guaranteed
Obligations (including all Post Petition Interest), together with any
necessary endorsements or other instruments of transfer, but without
reducing or affecting in any manner the liability of such Guarantor under
the other provisions of this Guaranty.
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(d) Agent Authorization. After the occurrence and during the
continuance of any Default (including the commencement and continuation of
any proceeding under any Bankruptcy Law relating to any other Loan Party),
the Agent is authorized and empowered (but without any obligation to so
do), in its discretion, (i) in the name of each Guarantor, to collect and
enforce, and to submit claims in respect of, Subordinated Obligations and
to apply any amounts received thereon to the Guaranteed Obligations
(including any and all Post Petition Interest), and (ii) to require each
Guarantor (A) to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and (B) to pay any amounts received on such
obligations to the Agent for application to the Guaranteed Obligations
(including any and all Post Petition Interest).
SECTION 7.06. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Guaranty, (ii) the Termination Date and (iii)
the latest date of expiration or termination of all Letters of Credit, (b) be
binding upon the Guarantor, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Agent and the Lenders and their successors,
transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, any Lender may assign or otherwise transfer all
or any portion of its rights and obligations under this Agreement (including,
without limitation, all or any portion of its Commitments, the Advances owing to
it, its participations in Letters of Credit and the Note or Notes held by it) to
any other Person, and such other Person shall thereupon become vested with all
the benefits in respect thereof granted to such Lender herein or otherwise, in
each case as and to the extent provided in Section 9.07. No Guarantor shall have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lenders.
SECTION 7.07. Release of Guarantors. A Guarantor shall be released
from its Obligations under this Guaranty (each a "Released Guarantor") (i) upon
the unconditional and full release of such Guarantor by the Required Lenders in
a writing in form and substance satisfactory to the Required Lenders, provided
that the Parent Guarantor shall not be released as a Guarantor without the
consent of all of the Lenders or (ii) so long as no Event of Default has
occurred and is continuing, automatically, without any further action on the
part of the Lenders, upon the request of the Parent Guarantor and immediately
prior to the release of such Guarantor as a guarantor of all Public Senior Debt
of which such Guarantor is a guarantor, if such Guarantor is not a Material
Subsidiary, as determined, if applicable, by reference to (A) the audited
statement of financial performance and statement of cash flow of the Parent
Guarantor for the fiscal year ended immediately prior to such date of
determination, and (B) the unaudited statement of financial performance and
statement of cash flow of such Guarantor for the Rolling Period ended on the
last day of the fiscal quarter ended immediately prior to the date of
determination, duly certified by the chief financial officer or deputy chief
financial officer of the Parent Guarantor as having been prepared in accordance
with generally accepted accounting principles applicable to the Parent
Guarantor, which certificate shall also certify (x) the percentage of the Parent
Guarantor's Consolidated operating income represented by such Guarantor and (y)
that there are no other Material Subsidiaries of the Parent Guarantor or, to the
extent that there are such Material Subsidiaries, such Material Subsidiaries
shall be added as Guarantors pursuant to Section 5.01(j), provided that, if at
any time and for any reason such Subsidiary is deemed to be or otherwise becomes
reinstated as a guarantor under any Public Senior Debt, such Subsidiary shall
automatically be reinstated as a Guarantor under this Guaranty without any
further action on the part of such Guarantor or the Lenders.
ARTICLE VIII
THE AGENT
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SECTION 8.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to this Agreement or applicable law. The Agent agrees to give to
each Lender prompt notice of each notice given to it by the Borrower pursuant to
the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
Lender that made any Advance as the holder of the Debt resulting therefrom until
the Agent receives and accepts an Assignment and Acceptance entered into by such
Lender, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 9.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance, observance or
satisfaction of any of the terms, covenants or conditions of this Agreement on
the part of the Borrower or the existence at any time of any Default or to
inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, this Agreement or any other instrument
or document furnished pursuant hereto; and (vi) shall incur no liability under
or in respect of this Agreement by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its
Commitments, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in its
individual capacity. Citibank and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders. The Agent
shall have no duty to disclose any information obtained or received by it or any
of its Affiliates relating to the Borrower or any of its Subsidiaries to the
extent such information was obtained or received in any capacity other than as
Agent.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01 and such other
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 Agent or
any other Lender and
48
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 8.05. Indemnification. (a) Each Lender severally agrees to
indemnify the Agent (to the extent not reimbursed by the Borrower), from and
against such Lender's Pro Rata Share of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Agent under this Agreement
(collectively, the "Indemnified Costs"), provided that no Lender shall be liable
for any portion of the Indemnified Costs resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Agent promptly upon demand for its Pro Rata Share
of any out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section 8.05
applies whether any such investigation, litigation or proceeding is brought by
the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to
the extent not promptly reimbursed by the Borrower) from and against such
Lender's Pro Rata Share of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against any such Issuing Bank in any way relating to or arising out of
this Agreement or any action taken or omitted by such Issuing Bank hereunder or
in connection herewith; provided, however, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Issuing Bank's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon
demand for its Pro Rata Share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrower under Section
9.04, to the extent that such Issuing Bank is not promptly reimbursed for such
costs and expenses by the Borrower.
(c) The failure of any Lender to reimburse the Agent or any Issuing
Bank promptly upon demand for its Pro Rata Share of any amount required to be
paid by the Lenders to the Agent or such Issuing Bank as provided herein shall
not relieve any other Lender of its obligation hereunder to reimburse the Agent
or such Issuing Bank for its Pro Rata Share of such amount, but no Lender shall
be responsible for the failure of any other Lender to reimburse the Agent or an
Issuing Bank for such other Lender's Pro Rata Share of such amount. Without
prejudice to the survival of any other agreement of any Lender hereunder, the
agreement and obligations of each Lender contained in this Section 8.05 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under the Notes.
SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least US$500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a
49
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
SECTION 8.07. Other Agents. Each Lender hereby acknowledges that none
of the documentation agent, the syndication agent or any other Lender designated
as any "Agent" (other than the Agent) on the signature pages hereof has any
liability hereunder other than in its capacity as a Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 3.01, (b) increase the Revolving Credit
Commitments of the Lenders, (c) reduce the principal of, or interest on, the
Advances or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Advances or any fees
or other amounts payable hereunder, (e) change the percentage of the Commitments
or of the aggregate unpaid principal amount of the Advances, or the number of
Lenders, that shall be required for the Lenders or any of them to take any
action hereunder or (f) amend this Section 9.01; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Agent under this Agreement or any Note and no amendment, waiver or
consent shall, unless in writing and signed by the Issuing Banks in addition to
the Lenders required above to take such action, adversely affect the rights or
obligations of the Issuing Banks in their capacities as such under this
Agreement.
SECTION 9.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier,
telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed
or delivered or (y) as and to the extent set forth in Section 9.02(b) and in the
proviso to this Section 9.02(a), if to any Loan Party, at the address of the
Borrower at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Group General Counsel; if to any Initial Lender, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assignment and Acceptance pursuant to
which it became a Lender; and if to the Agent, at its address at ▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Bank Loan Syndications Department; or, as
to the Borrower or the Agent, at such other address as shall be designated by
such party in a written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a written notice
to the Borrower and the Agent, provided that materials required to be delivered
pursuant to Section 5.01(i)(i), (ii) or (iv) shall be delivered to the Agent as
specified in Section 9.02(b) or as otherwise specified to the Borrower by the
Agent. All such notices and communications shall, when mailed, telecopied,
telegraphed or e-mailed, be effective when deposited in the mails, telecopied,
delivered to the telegraph company or confirmed by e-mail, respectively, except
that notices and communications to the Agent pursuant to Article II, III or VII
shall not be effective until received by the Agent. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be
50
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
(b) So long as Citibank or any of its Affiliates is the Agent,
materials required to be delivered pursuant to Section 5.01(i)(i), (ii), (iv)
and (vi) shall be delivered to the Agent in an electronic medium in a format
acceptable to the Agent and the Lenders by e-mail at
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. The Borrower agrees that the Agent may make such
materials, as well as any other written information, documents, instruments and
other material relating to the Borrower, any of its Subsidiaries or any other
materials or matters relating to this Agreement, the Notes or any of the
transactions contemplated hereby (collectively, the "Communications") available
to the Lenders by posting such notices on Intralinks, "e-Disclosure", the
Agent's internet delivery system that is part of Fixed Income Direct, Global
Fixed Income's primary web portal, or a substantially similar electronic
transmission system (the "Platform"). The Borrower acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided "as is" and "as available" and (iii)
neither the Agent nor any of its Affiliates warrants the accuracy, adequacy or
completeness of the Communications or the Platform and each expressly disclaims
liability for errors or omissions in the Communications or the Platform. No
warranty of any kind, express, implied or statutory, including, without
limitation, any warranty of merchantability, fitness for a particular purpose,
non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Agent or any of its Affiliates in connection with the
Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted to
the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this Agreement; provided that
if requested by any Lender the Agent shall deliver a copy of the Communications
to such Lender by email or telecopier. Each Lender agrees (i) to notify the
Agent in writing of such Lender's e-mail address to which a Notice may be sent
by electronic transmission (including by electronic communication) on or before
the date such Lender becomes a party to this Agreement (and from time to time
thereafter to ensure that the Agent has on record an effective e-mail address
for such Lender) and (ii) that any Notice may be sent to such e-mail address.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to pay
within 30 days after its receipt of a written request therefor, which request
shall provide in reasonable detail the basis for the claim therefor, all
reasonable costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, consultant, and audit expenses and (B) the reasonable
fees and expenses of counsel for the Agent with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay within 30 days after its receipt
of a written request therefor, which request shall provide in reasonable detail
the basis for the claim therefor, all reasonable costs and expenses of the Agent
and the Lenders, if any (including, without limitation, reasonable counsel fees
and expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the Notes and the other
documents to be delivered
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hereunder, including, without limitation, reasonable fees and expenses of
counsel for the Agent and each Lender in connection with the enforcement of
rights under this Section 9.04(a), provided that this sentence, and the
preceding sentence to the extent relating to administration, modification and
amendment of this Agreement, shall cover the fees and expenses of only one law
firm or other counsel (plus any intellectual property counsel or local counsel,
such counsel being one counsel in each territory to the extent available and
appropriate, retained by such law firm or other counsel) for each of the Agent
and each Lender, with each of the Agent and each Lender being obligated to
consider in good faith using the same law firm or other counsel as each of the
Agent and each Lender so long as no conflict of interest, in the reasonable
judgment of such Agent or Lender, would exist.
(b) The Borrower agrees to indemnify and hold harmless the Agent and
each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel subject to the
proviso in subclause (a)) incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
(i) the Notes, this Agreement, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Advances or (ii) the actual or
alleged presence of Hazardous Materials on any property of the Borrower or any
of its Subsidiaries or any Environmental Action relating in any way to the
Borrower or any of its Subsidiaries, except to the extent such claim, damage,
loss, liability or expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct. Promptly after receipt by an Indemnified
Party of notice of the commencement of any action or proceeding involving a
claim referred to in this subsection (b) above, such Indemnified Party shall, if
a claim in respect thereof is to be made against Borrower under this subsection
(b), promptly give notice to Borrower of the commencement of such action or
proceeding; provided, however, that the failure of such Indemnified Party to
give notice provided in this subsection (b) shall not (i) relieve Borrower of
its Obligations under this subsection (b), unless and to the extent that such
failure results in the forfeiture of rights or defenses and Borrower incurs an
increased Obligation to such Indemnified Party under this subsection (b) on
account of such failure, and (ii) in any event relieve Borrower from any
liability with respect to such Indemnified Party which Borrower may have
otherwise on account of this Agreement. If any such action or proceeding is
brought against any Indemnified Party, unless in the reasonable opinion of
counsel for such Indemnified Party a conflict of interest between such
Indemnified Party and Borrower may exist in respect of such action or proceeding
and representation of both would be inappropriate, Borrower shall be entitled to
participate in and to assume the defense thereof with counsel reasonably
satisfactory to such Indemnified Party, and after notice from Borrower to such
Indemnified Party of its election so to assume the defense thereof, (x) Borrower
shall not be liable to such Indemnified Party for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof and (y) such Indemnified Party shall take all action that Borrower may
reasonably request (and that is reasonably necessary or appropriate and would
not, in the reasonable judgment of such Indemnified Party, be materially
disadvantageous to such Indemnified Party) in order to cooperate in Borrower's
participation in and assumption of such defense. The Borrower shall not be
liable for any settlement of any action or claim effected without the Borrower's
consent (which consent shall not be unreasonably withheld), and the Borrower
shall not settle or compromise any action or claim affecting any Indemnified
Party without such Indemnified Party's prior written consent (which shall not be
unreasonably withheld) if the settlement or compromise involves any performance
by, or adverse admission of, such Indemnified Party. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 9.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, equityholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
Borrower also
52
agrees not to assert any claim for special, indirect, consequential or punitive
damages against the Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, arising out of or otherwise relating to the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances.
(c) Upon any payment of any indemnified amount by Borrower to any
Indemnified Party, Borrower shall be subrogated to all rights of such
Indemnified Party to seek reimbursement from any other Person in connection with
such indemnified amount.
(d) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender other
than on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or 2.12,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender other than on the last day
of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 9.07 as a result of a
demand by the Borrower pursuant to Section 9.07(a), the Borrower shall, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.11, 2.14 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
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 indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of any Loan Party against any and
all of the obligations of such Loan Party now or hereafter existing under this
Agreement and the Note held by such Lender, and to make any such currency
exchange as may be necessary to effect such application, whether or not such
Lender shall have made any demand under this Agreement or such Note and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
Parent Guarantor after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
(other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Borrower, each Initial Guarantor and the Agent and when the
Agent shall have been notified by each Initial Lender that such Initial Lender
has executed it and thereafter shall be binding upon and inure to the benefit of
the Borrower, each Initial Guarantor, the Agent and each Lender and their
respective successors and assigns, except that no Loan Party shall have the
right to assign its rights or Obligations hereunder or any interest herein
without the prior written consent of the Lenders.
53
SECTION 9.07. Assignments and Participations. (a) Each Lender may and,
if demanded by the Borrower (following a demand by such Lender pursuant to
Section 2.11 or 2.14) upon at least five Business Days' notice to such Lender
and the Agent, will assign to one or more Persons all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its Revolving Credit Commitment, its Unissued Letter of Credit
Commitment, the Advances owing to it, its participations in Letters of Credit
and the Note or Notes held by it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all rights
and obligations under this Agreement, (ii) except in the case of an assignment
to a Person that, immediately prior to such assignment, was a Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, the
amount of (x) the Revolving Credit Commitment of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than US$10,000,000 or an integral multiple of US$1,000,000 in excess
thereof and (y) the Unissued Letter of Credit Commitment of the assigning Lender
being assigned pursuant to each such assignment shall in no event be less than
US$10,000,000 or an integral multiple of US$1,000,000 in excess thereof unless
the Borrower and the Agent otherwise agree, (iii) each such assignment shall be
to an Eligible Assignee, (iv) each such assignment made as a result of a demand
by the Borrower pursuant to this Section 9.07(a) shall be arranged by the
Borrower after consultation with the Agent and shall be either an assignment of
all of the rights and obligations of the assigning Lender under this Agreement
or an assignment of a portion of such rights and obligations made concurrently
with another such assignment or other such assignments that together cover all
of the rights and obligations of the assigning Lender under this Agreement, (v)
no Lender shall be obligated to make any such assignment as a result of a demand
by the Borrower pursuant to this Section 9.07(a) unless and until such Lender
shall have received one or more payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, and (vi) the parties
to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment and a processing and recordation fee of
US$3,500 payable by the parties to each such assignment, provided, however, that
in the case of each assignment made as a result of a demand by the Borrower,
such recordation fee shall be payable by the Borrower except that no such
recordation fee shall be payable in the case of an assignment made at the
request of the Borrower to an Eligible Assignee that is an existing Lender. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(other than its rights under Sections 2.11, 2.14 and 9.04 to the extent any
claim thereunder relates to an event arising prior to such assignment) and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or
54
warranty and assumes no responsibility with respect to the financial condition
of any Loan Party or the performance or observance by any Loan Party of any of
its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by
it as a Lender and (viii) each of the assigning Lender and the assignee is
authorized to enter into such Assignment and Acceptance.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in Section
9.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Advances owing to, each Lender
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than any Loan Party or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, its participation in Letters of
Credit, the Advances owing to it, its participations in Letters of Credit and
any Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement, (iv) each Loan Party, the 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 and
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Note, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 9.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Loan Parties furnished to such Lender by
55
or on behalf of the Loan Parties; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree for
the benefit of the Loan Parties to preserve the confidentiality of any Borrower
Information relating to the Loan Parties received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it, its participations in Letters of Credit and any Note or Notes held
by it) in favor of any Federal Reserve Bank in accordance with Regulation A of
the Board of Governors of the Federal Reserve System.
SECTION 9.08. Confidentiality. Neither the Agent nor any Lender may
disclose to any Person any confidential, proprietary or non-public information
of the Loan Parties furnished to the Agent or the Lenders by any Loan Party
(such information being referred to collectively herein as the "Borrower
Information"), except that each of the Agent and each of the Lenders may
disclose Borrower Information (i) to its and its affiliates' employees,
officers, directors, partners, counsel, auditors, representatives, agents and
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Borrower Information and
instructed to keep such Borrower Information confidential on substantially the
same terms as provided herein), (ii) to the extent requested by any regulatory
authority, (iii) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (iv) to any other party to this
Agreement, (v) 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, (vi) subject to an agreement containing provisions
substantially the same as those of this Section 9.08, to any assignee or
participant or prospective assignee or participant, (vii) to the extent such
Borrower Information (A) is or becomes generally available to the public on a
non-confidential basis other than as a result of a breach of this Section 9.08
by the Agent or such Lender, or (B) is or becomes available to the Agent or such
Lender on a nonconfidential basis from a source other than the Loan Parties and
(viii) with the consent of any Loan; provided, that, prior to any disclosure
pursuant to (ii) or (iii) above, the disclosing party agrees that it will notify
the non-disclosing party as soon as practical in the event of any such request
for a disclosure (other than at the request of a regulatory authority), unless
such notification shall be prohibited by applicable law or legal process.
Notwithstanding anything herein to the contrary, the Agent and the Lenders may
disclose to any and all Persons, without limitation of any kind, the U.S. tax
treatment and tax structure of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax analyses) that are
provided to the Agent or any Lender relating to such U.S. tax treatment and tax
structure.
SECTION 9.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, 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 any such New York State court or, to the extent permitted by law,
in such federal
56
court. Each Loan Party hereby agrees that service of process in any such action
or proceeding brought in any such New York State court or in such federal court
may be made upon the Borrower at its address set forth in Section 9.02 and each
other Loan Party hereby irrevocably appoints the Borrower its authorized agent
to accept such service of process, and agrees that the failure of the Borrower
to give any notice of any such service shall not impair or affect the validity
of such service or of any judgment rendered in any action or proceeding based
thereon. Each Loan Party hereby further irrevocably consents, subject to
applicable law, to the service of process in any action or proceeding in such
courts by the mailing thereof by any parties hereto by registered or certified
mail, postage prepaid, to the Borrower at its address specified pursuant to
Section 9.02. 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 or the Notes
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
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 or the Notes in any New
York State or federal court. 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.
SECTION 9.12. No Liability of the Issuing Banks. The Borrower assumes
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither an
Issuing Bank nor any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against such Issuing Bank, and such Issuing Bank
shall be liable to the Borrower, to the extent of any direct, but not
consequential damages suffered by the Borrower that the Borrower proves were
caused by (i) such Issuing Bank's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of the Letter of Credit or (ii) such Issuing Bank's willful failure to
make lawful payment under a Letter of Credit after the presentation to it of a
draft and certificates strictly complying the terms and conditions of the Letter
of Credit. In furtherance and not in limitation of the foregoing, such Issuing
Bank may accept documents that appear on their face to be in order, without
responsibility for further investigation.
SECTION 9.13. Judgment. (a) If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder in Euros into
Dollars, the parties agree to the fullest extent that they may effectively do
so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures the Agent could purchase Euros with Dollars at
Citibank's principal office in London at 11:00 A.M. (London time) on the
Business Day preceding that on which final judgment is given.
(b) The obligation of the Borrower and each Loan Party in respect of
any sum due from it in any currency (the "Primary Currency") to any Lender or
the Agent hereunder shall, notwithstanding any judgment in any other currency,
be discharged only to the extent that on the Business Day following receipt by
such Lender or the Agent (as the case may be), of any sum adjudged to be so
57
due in such other currency, such Lender or the Agent (as the case may be) may in
accordance with normal banking procedures purchase the applicable Primary
Currency with such other currency; if the amount of the applicable Primary
Currency so purchased is less than such sum due to such Lender or the Agent (as
the case may be) in the applicable Primary Currency, the Borrower and each other
Loan Party agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Agent (as the case may be) against
such loss, and if the amount of the applicable Primary Currency so purchased
exceeds such sum due to any Lender or the Agent (as the case may be) in the
applicable Primary Currency, such Lender or the Agent (as the case may be)
agrees to remit to the Borrower or such other Loan Party such excess.
58
SECTION 9.14. Waiver of Jury Trial. Each of the Borrower, the
Guarantors, the Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
NEWS AMERICA INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Executive Vice President
CITIBANK, N.A.,
as Agent
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Director
Initial Guarantors
FEG HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Secretary
FOX ENTERTAINMENT GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Executive Vice President
NEWS AMERICA MARKETING FSI, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Executive Vice President
NEWS PUBLISHING AUSTRALIA LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Executive Vice President
59
THE NEWS CORPORATION LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director and Authorized Signatory
60
Initial Issuing Banks
Letter of Credit Commitment
US$150,000,000 ABN AMRO BANK, N.V.
By: /s/ ▇▇▇▇▇▇▇ O' ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ O' ▇. ▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
US$150,000,000 BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principal
US$150,000,000 CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Director
US$150,000,000 JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
US$600,000,000 Total of the Letter of Credit Commitments
Initial Lenders
Revolving Credit Commitment
US$212,500,000 CITIBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Director
US$212,500,000 JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
61
US$150,000,000 BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principle
US$150,000,000 BNP PARIBAS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
US$50,000,000 HSBC BANK USA
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Banker
US$100,000,000 HSBC BANK PLC
By: /s/
-----------------------------------------
Name:
Title:
US$125,000,000 LLOYDS TSB BANK PLC
By: /s/ Windsor ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: Windsor ▇. ▇▇▇▇▇▇
Title: Director, Corporate Banking,
USA D061
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President,
Corporate Banking, USA R027
US$125,000,000 NATIONAL AUSTRALIA BANK LIMITED
By: /s/
-----------------------------------------
Name:
Title:
62
US$100,000,000 ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇▇ O' ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ O' ▇. ▇▇▇▇▇
Title: Senior Vice President
By: /s/ Shilpa Parendekar
-----------------------------------------
Name: Shilpa Parendekar
Title: Vice President
US$100,000,000 DRESDNER BANK AG, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
US$100,000,000 FLEET NATIONAL BANK
By: /s/
-----------------------------------------
Name:
Title:
US$100,000,000 THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
63
US$75,000,000 CREDIT LYONNAIS
By: /s/
-----------------------------------------
Name:
Title:
US$50,000,000 THE BANK OF NEW YORK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
US$50,000,000 COMMONWEALTH BANK OF AUSTRALIA GRAND CAYMAN
BRANCH
By: /s/ K. ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: K. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
Client Origination
US$50,000,000 WESTPAC BANKING CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
US$1,750,000,000 Total of the Revolving Credit Commitments
64