EXHIBIT 10.1
EXECUTION COPY
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CREDIT AGREEMENT
dated as of
July 8, 2005
among
EXPEDIA, INC., a Delaware corporation,
EXPEDIA, INC., a Washington corporation,
TRAVELSCAPE, INC., a Nevada corporation,
HOTELS.COM, a Delaware corporation,
HOTWIRE, INC., a Delaware corporation
The Lenders Party Hereto
BANK OF AMERICA, N.A.
as Syndication Agent
WACHOVIA BANK, NATIONAL ASSOCIATION
and
THE ROYAL BANK OF SCOTLAND PLC
as Co-Documentation Agents
and
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
and
J.P. MORGAN EUROPE LIMITED
as London Agent
---------------------------
J.P. MORGAN SECURITIES INC., BANC OF AMERICA SECURITIES LLC
as Joint Lead Arranger as Joint Lead Arranger
and Joint Bookrunner and Joint Bookrunner
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TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Defined Terms..............................................1
SECTION 1.02. Classification of Loans and Borrowings....................24
SECTION 1.03. Terms Generally...........................................24
SECTION 1.04. Accounting Terms; GAAP....................................25
SECTION 1.05. Effectuation of Spin-Off..................................25
SECTION 1.06. Currency Translation......................................26
ARTICLE II
The Credits
SECTION 2.01. Commitments...............................................27
SECTION 2.02. Loans and Borrowings......................................27
SECTION 2.03. Requests for Revolving Borrowings.........................28
SECTION 2.04. Borrowing Subsidiaries....................................29
SECTION 2.05. Swingline Loans...........................................29
SECTION 2.06. Letters of Credit.........................................30
SECTION 2.07. Funding of Borrowings.....................................36
SECTION 2.08. Interest Elections........................................37
SECTION 2.09. Termination and Reduction of Commitments; Increase of
Commitments...............................................38
SECTION 2.10. Repayment of Loans; Evidence of Debt......................41
SECTION 2.11. Prepayment of Loans.......................................42
SECTION 2.12. Fees......................................................43
SECTION 2.13. Interest..................................................44
SECTION 2.14. Alternate Rate of Interest................................45
SECTION 2.15. Increased Costs...........................................46
SECTION 2.16. Break Funding Payments....................................47
SECTION 2.17. Taxes.....................................................48
SECTION 2.18. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.......................................49
SECTION 2.19. Mitigation Obligations; Replacement of Lenders............51
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers......................................52
SECTION 3.02. Authorization; Enforceability.............................52
SECTION 3.03. Governmental Approvals; No Conflicts......................53
SECTION 3.04. Financial Condition; No Material Adverse Change...........53
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SECTION 3.05. Properties................................................54
SECTION 3.06. Litigation and Environmental Matters......................54
SECTION 3.07. Compliance with Laws and Agreements.......................54
SECTION 3.08. Investment and Holding Company Status.....................55
SECTION 3.09. Taxes.....................................................55
SECTION 3.10. ERISA.....................................................55
SECTION 3.11. Disclosure................................................55
SECTION 3.12. Guarantee Requirement.....................................55
SECTION 3.13. Subsidiaries..............................................55
SECTION 3.14. Use of Proceeds; Margin Regulations.......................56
SECTION 3.15. Borrowing Subsidiaries....................................56
ARTICLE IV
Conditions
SECTION 4.01. Effective Date............................................56
SECTION 4.02. Each Credit Event.........................................59
SECTION 4.03. Credit Events in Respect of Each Borrowing Subsidiary.....59
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements; Ratings Change and Other
Information...............................................60
SECTION 5.02. Notices of Material Events................................61
SECTION 5.03. Existence; Conduct of Business............................62
SECTION 5.04. Payment of Tax Liabilities................................62
SECTION 5.05. Maintenance of Properties; Insurance......................62
SECTION 5.06. Books and Records; Inspection Rights......................63
SECTION 5.07. Compliance with Laws......................................63
SECTION 5.08. Further Assurances........................................63
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness..............................................63
SECTION 6.02. Liens.....................................................64
SECTION 6.03. Sale and Leaseback Transactions...........................65
SECTION 6.04. Fundamental Changes.......................................66
SECTION 6.05. Restricted Payments.......................................66
SECTION 6.06. Transactions with Affiliates..............................67
SECTION 6.07. Restrictive Agreements....................................68
SECTION 6.08. Asset Dispositions........................................68
SECTION 6.09. Use of Proceeds and Letters of Credit.....................69
SECTION 6.10. Leverage Ratio............................................69
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SECTION 6.11. Consolidated Net Worth....................................69
SECTION 6.12. Maintenance of Borrowing Subsidiaries as Subsidiaries.....70
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default.........................................70
SECTION 7.02. CAM Exchange..............................................72
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices...................................................75
SECTION 9.02. Waivers; Amendments.......................................76
SECTION 9.03. Expenses; Indemnity; Damage Waiver........................79
SECTION 9.04. Successors and Assigns....................................80
SECTION 9.05. Survival..................................................83
SECTION 9.06. Counterparts; Integration; Effectiveness; Issuing Banks...84
SECTION 9.07. Severability..............................................84
SECTION 9.08. Right of Setoff...........................................84
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process...................................................85
SECTION 9.10. WAIVER OF JURY TRIAL......................................86
SECTION 9.11. Headings..................................................86
SECTION 9.12. Confidentiality...........................................86
SECTION 9.13. Interest Rate Limitation..................................87
SECTION 9.14. Release of Guarantees.....................................87
SECTION 9.15. Conversion of Currencies..................................87
SECTION 9.16. USA Patriot Act Notice....................................88
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SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 2.06 -- Initial Issuing Bank LC Commitments
Schedule 2.06A-- Existing Letters of Credit
Schedule 3.06 -- Disclosed Matters
Schedule 3.13 -- Subsidiaries
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.07 -- Existing Restrictions
EXHIBITS:
Exhibit A-1 -- Form of Assignment and Assumption
Exhibit A-2 -- Form of Issuing Bank Agreement
Exhibit B-1 -- Form of Borrowing Subsidiary Agreement
Exhibit B-2 -- Form of Borrowing Subsidiary Termination
Exhibit C -- Form of Guarantee Agreement
Exhibit D-1 -- Form of Opinion of Wachtell, Lipton, Rosen & Katz,
Borrower's Counsel
Exhibit D-2 -- Form of Opinion of In-House Counsel
Exhibit D-3 -- Form of Opinion of Local Counsel
iv
CREDIT AGREEMENT dated as of July 8, 2005, among EXPEDIA,
INC., a Delaware corporation; EXPEDIA, INC., a Washington
corporation; TRAVELSCAPE, INC., a Nevada corporation; HOTELS.COM,
a Delaware Corporation; HOTWIRE, INC., a Delaware corporation;
the LENDERS party hereto; JPMORGAN CHASE BANK, N.A., as
Administrative Agent; and J.P. Morgan EUROPE LIMITED, as London
Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ADJUSTED LIBO RATE" means, (a) with respect to any Eurocurrency
Borrowing denominated in US Dollars for any Interest Period, an interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(i) the LIBO Rate for such Interest Period multiplied by (ii) the Statutory
Reserve Rate and (b) with respect to any Eurocurrency Borrowing denominated
in an Alternative Currency for any Interest Period, an interest rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the
LIBO Rate for such Interest Period.
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Lenders hereunder, or, as
applicable, such Affiliates thereof as it shall from time to time designate
by notice to the Company and the Lenders for the purpose of performing its
obligations hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"AGENTS" means, collectively, the Administrative Agent and the
London Agent.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective
Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate
due to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime Rate
or the Federal Funds Effective Rate, respectively.
"ALTERNATIVE CURRENCY" means Euro, Sterling and any other currency
other than US Dollars that is freely available, freely transferable and
freely convertible into US Dollars and in which dealings in deposits are
carried on in the London interbank market, PROVIDED that at the time of the
issuance, amendment, renewal or extension of any Letter of Credit denominated
in a currency other than US Dollars, Euro or Sterling, such other currency is
reasonably acceptable to the Applicable Agent and the Issuing Bank in respect
of such Letter of Credit.
"APPLICABLE AGENT" means (a) with respect to a Loan or Borrowing
denominated in US Dollars or any Letter of Credit, and with respect to any
payment hereunder that does not relate to a particular Loan or Borrowing, the
Administrative Agent and (b) with respect to a Loan or Borrowing denominated
in any Alternative Currency, the London Agent.
"APPLICABLE RATE" means, for any day, with respect to any
Eurocurrency Revolving Loan, or with respect to the commitment fees or letter
of credit fees payable hereunder, as the case may be, the applicable rate per
annum set forth below under the caption "Commitment Fee Rate", "Eurocurrency
Spread" or "Letter of Credit Fee Rate", as the case may be, based upon the
Leverage Ratio as of the most recent determination date; PROVIDED that until
the first date on which the Company's consolidated financial statements shall
have been delivered pursuant to Section 5.01(a) or (b) the "Applicable Rate"
shall be the applicable rate per annum set forth below in Category 1:
LEVERAGE RATIO: COMMITMENT FEE LETTER OF EUROCURRENCY
RATE CREDIT SPREAD
FEE RATE
CATEGORY 1
<1.00 0.100% 0.400% 0.500%
CATEGORY 2
>1.00 and < 1.50 0.125% 0.500% 0.625%
-
CATEGORY 3
>1.50 and < 2.00 0.150% 0.600% 0.750%
-
CATEGORY 4
>2.00 and < 2.50 0.175% 0.700% 0.875%
-
CATEGORY 5
>2.50 0.200% 0.925% 1.125%
-
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For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Company's fiscal year
based upon the Company's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate
resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the Business Day following the date of
delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately
preceding the effective date of the next such change; PROVIDED that the
Leverage Ratio shall be deemed to be in Category 5 at the option of the
Administrative Agent or at the request of the Required Lenders if the Company
fails to deliver the consolidated financial statements required to be
delivered by it pursuant to Section 5.01(a) or (b), during the period from the
last day on which such statements are permitted to be delivered in conformity
with Section 5.01(a) or (b), as the case may be, until such consolidated
financial statements are delivered.
"APPROVED FUND" has the meaning assigned to such term in
Section 9.04.
"ARRANGERS" means J.P. Morgan Securities Inc. and Banc of America
Securities LLC.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative
Agent, in the form of Exhibit A-1 or any other form approved by the
Administrative Agent.
"AVAILABILITY PERIOD" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date
of termination of the Commitments.
"BANKRUPTCY CODE" means Title 11 of the United States Code, as
amended from time to time.
"BOARD" means the Board of Governors of the Federal Reserve System
of the United States of America.
"BORROWER" means any Borrowing Subsidiary.
"BORROWING" means (a) Revolving Loans of the same Type and
currency, made, converted or continued on the same date and, in the case of
Eurocurrency Loans, as to which a single Interest Period is in effect, or (b)
a Swingline Loan.
"BORROWING MINIMUM" means (a) in the case of a Borrowing
denominated in US Dollars, US$5,000,000, (b) in the case of a Borrowing
denominated in Euro, (euro)5,000,000, and (c) in the case of a Borrowing
denominated in Sterling, (pound)5,000,000.
"BORROWING MULTIPLE" means (a) in the case of a Borrowing
denominated in US Dollars, US$1,000,000, (b) in the case of a Borrowing
denominated in Euro, (euro)1,000,000, and (c) in the case of a Borrowing
denominated in Sterling, (pound)1,000,000.
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"BORROWING REQUEST" means a request by a Borrower for a Revolving
Borrowing in accordance with Section 2.03.
"BORROWING SUBSIDIARY" means, at any time, each of (a) Expedia,
Inc., a Washington corporation, Travelscape, Inc., Hotels.com, and Hotwire,
Inc. and (b) each other Subsidiary that has been designated by the Company as
a Borrowing Subsidiary pursuant to Section 2.04, other than any Subsidiary
that has ceased to be a Borrowing Subsidiary as provided in Section 2.04.
"BORROWING SUBSIDIARY AGREEMENT" means a Borrowing Subsidiary
Agreement substantially in the form of Exhibit B-1.
"BORROWING SUBSIDIARY TERMINATION" means a Borrowing Subsidiary
Termination substantially in the form of Exhibit B-2.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to remain closed; PROVIDED that, (a) when used in connection
with a Eurocurrency Loan denominated in any currency or a Letter of Credit
denominated in an Alternative Currency, the term "BUSINESS DAY" shall also
exclude any day on which banks are not open for dealings in deposits
denominated in such currency in the London interbank market, and (b) when
used in connection with a Loan denominated in Euro, the term "Business Day"
shall also exclude any day on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer (TARGET) payment system is not open for the
settlement of payments in Euro.
"CAM EXCHANGE" means the exchange of the Lenders' interests
provided for in Section 7.02.
"CAM EXCHANGE DATE" means the first date on which there shall occur
(a) any event referred to in paragraph (h) or (i) of Section 7.01 in respect
of the Company or (b) an acceleration of Loans pursuant to Section 7.01.
"CAM PERCENTAGE" means, with respect to each Lender, a fraction,
expressed as a decimal, of which (a)the numerator shall be the aggregate
Designated Obligations owed to such Lender (whether or not at the time due
and payable) and (b) the denominator shall be the aggregate Designated
Obligations owed to all the Lenders (whether or not at the time due and
payable).
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
4
"CFC" shall mean (a) each Subsidiary that is a "controlled foreign
corporation" for purposes of the Code and (b) each subsidiary of each such
controlled foreign corporation.
"CHANGE IN CONTROL" shall mean (a) the acquisition of "beneficial
ownership", directly or indirectly, by any Person or group, other than the
Permitted Holders, of shares representing more than 35% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock
of the Company (the "Total Voting Power"), unless either (x) the Permitted
Holders beneficially own a majority of the Total Voting Power or (y) if the
Permitted Holders beneficially own less than a majority of the Total Voting
Power, the excess of the percentage of Total Voting Power represented by the
shares beneficially owned by the Permitted Holders over the percentage of
Total Voting Power represented by shares beneficially owned by such acquiring
Person or group is at least 5%, or (b) occupation of a majority of the seats
(other than vacant seats) on the board of directors of the Company by Persons
who were neither (i) nominated by the board of directors of the Company nor
(ii) appointed by directors so nominated. As used in this definition,
"group" shall have the meaning given to such term in Rule 13d-5 under the
Securities Exchange Act of 1934 as in effect on the date hereof.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule
or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance by
any Lender or any Issuing Bank (or, for purposes of Section 2.15(b), by any
lending office of such Lender or by such Lender's or such Issuing Bank's
holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued
after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are US Tranche
Revolving Loans, European Tranche Revolving Loans or Swingline Loans and,
when used in reference to any Commitment, refers to whether such Commitment
is a US Tranche Commitment or European Tranche Commitment.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
"COMMITMENT" means a US Tranche Commitment or a European Tranche
Commitment or any combination thereof (as the context requires). The initial
aggregate amount of the Lenders' Commitments is US$1,000,000,000.
"COMPANY" means Expedia, Inc., a Delaware corporation.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net
Income for such period plus (a) without duplication and to the extent
deducted in determining such Consolidated Net Income, the sum of
(i) consolidated interest expense for such
5
period, (ii) consolidated income tax expense for such period, (iii) all amounts
attributable to depreciation and amortization for such period, (iv) all losses
on sales or dispositions of assets outside the ordinary course of business and
(v) any extraordinary non-cash charges for such period, and minus (b) without
duplication and to the extent included in determining such Consolidated Net
Income, (A) all gains on sales or dispositions of assets outside the ordinary
course of business and (B) any extraordinary gains for such period, all
determined on a consolidated basis in accordance with GAAP. For purposes of
determining the Leverage Ratio as of June 30, 2005, and September 30, 2005,
Consolidated EBITDA shall be deemed to be equal to (a) Consolidated EBITDA for
the two consecutive fiscal quarters ended June 30, 2005, multiplied by 2 and (b)
Consolidated EBITDA for the three consecutive fiscal quarters ended September
30, 2005, multiplied by 4/3, respectively. For the purposes of calculating
Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a
"REFERENCE PERIOD") pursuant to any determination of the Leverage Ratio, if
during such Reference Period (or, in the case of pro forma calculations, during
the period from the last day of such Reference Period to and including the date
as of which such calculation is made) any Borrower or any Subsidiary shall have
made a Material Disposition or Material Acquisition, Consolidated EBITDA for
such Reference Period shall be calculated after giving pro forma effect thereto
as if such Material Disposition or Material Acquisition occurred on the first
day of such Reference Period (with the Reference Period for the purposes of pro
forma calculations being the most recent period of four consecutive fiscal
quarters for which the relevant financial information is available). As used in
this definition, "MATERIAL ACQUISITION" means any acquisition of property or
series of related acquisitions of property that involves consideration in excess
of US$100,000,000; and "MATERIAL DISPOSITION" means any sale, transfer or other
disposition of property or series of related sales, transfers or other
dispositions of property that yields gross proceeds to the Company or any
Subsidiary in excess of US$100,000,000. For purposes of calculating Consolidated
EBITDA for any period prior to the Effective Date, Consolidated EBITDA for such
period shall be calculated giving pro forma effect to the Spin-Off.
"CONSOLIDATED FUNDED DEBT" means, on any date, the sum for the
Company and the Subsidiaries of all (a) Indebtedness that would appear on a
consolidated balance sheet of the Company prepared as of such date in
accordance with GAAP, (b) Capital Lease Obligations, (c) Synthetic Lease
Obligations, (d) Guarantees by the Company and the Subsidiaries of
Indebtedness of Persons other than the Company and the Subsidiaries,
(e) obligations, contingent or otherwise, of the Company and the Subsidiaries
as an account party in respect of letters of credit and (f) Securitization
Transactions of the Company and the Subsidiaries.
"CONSOLIDATED NET INCOME" means, for any period, the net income or
loss of the Company and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED NET WORTH" means, on any date, the stockholder's
equity of the Company and the Subsidiaries, determined on a consolidated
basis in accordance with GAAP.
6
"CONSOLIDATED REVENUES" means, for any period, the aggregate
revenues of the Company and the Subsidiaries, determined on a consolidated
basis in accordance with GAAP consistently applied.
"CONSOLIDATED TANGIBLE ASSETS" means, at any time, the aggregate
amount of assets (less applicable accumulated depreciation, depletion and
amortization and other reserves and other properly deductible items) of the
Company and the Subsidiaries, MINUS all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other intangible assets of
the Company and the Subsidiaries, all as set forth in the most recent
consolidated balance sheet of the Company and the Subsidiaries delivered
pursuant to Section 5.01 (or, prior to any such delivery, referred to in
Section 3.04) on such date of determination, determined on a consolidated
basis in accordance with GAAP.
"CONSOLIDATED TOTAL ASSETS" means, at any time, the consolidated
total assets of the Company and the Subsidiaries, as such amount would appear
on a consolidated balance sheet of the Company prepared as of such date in
accordance with GAAP.
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies, or the
dismissal or appointment of the management, of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "CONTROLLING"
and "CONTROLLED" have meanings correlative thereto.
"DEFAULT" means any event or condition which constitutes an Event
of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DESIGNATED OBLIGATIONS" means Obligations consisting of the
principal of and interest on outstanding Loans, reimbursement obligations in
respect of LC Disbursements and fees.
"DISCLOSED MATTERS" means the actions, suits and proceedings and
the environmental matters disclosed in Schedule 3.06.
"DOMESTIC SUBSIDIARY" shall mean a Subsidiary incorporated or
organized under the laws of the United States of America, any State thereof
or the District of Columbia.
"EFFECTIVE DATE" means the date on which the conditions specified
in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of
natural resources, the management, release or threatened release of any
Hazardous Material or to health and safety matters.
7
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any
Subsidiary directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the release or threatened release of any
Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code
or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the Company
or any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the Company or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating
to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Company or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Company or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURO" or "(EURO)" means the lawful currency of the member states
of the European Union that has adopted a single currency in accordance with
applicable law or treaty.
8
"EUROCURRENCY", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
"EUROPEAN TRANCHE" has the meaning assigned to such term under the
definition of "Tranche".
"EUROPEAN TRANCHE COMMITMENT" means, with respect to each European
Tranche Lender, the commitment of such European Tranche Lender to make
European Tranche Revolving Loans, expressed as an amount representing the
maximum aggregate permitted amount of such Lender's European Tranche
Revolving Exposure hereunder, as such commitment may be (a) reduced from time
to time pursuant to Section 2.09 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04.
The initial amount of each Lender's European Tranche Commitment is set forth
on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender shall have assumed its European Tranche Commitment, as applicable.
The initial aggregate amount of the Lenders' European Tranche Commitments is
US$250,000,000.
"EUROPEAN TRANCHE LENDER" means a Lender with a European Tranche
Commitment or with European Tranche Revolving Exposure.
"EUROPEAN TRANCHE PERCENTAGE" means, with respect to any European
Tranche Lender, the percentage of the total European Tranche Commitments
represented by such Lender's European Tranche Commitment. If the European
Tranche Commitments have terminated or expired, the European Tranche
Percentages shall be determined based upon the European Tranche Commitments
most recently in effect, giving effect to any assignments.
"EUROPEAN TRANCHE REVOLVING EXPOSURE" means, at any time, the sum
of (a) the aggregate principal amount of the European Tranche Revolving Loans
denominated in US Dollars outstanding at such time and (b) the US Dollar
Equivalent of the aggregate principal amount of the European Tranche
Revolving Loans denominated in Euro or Sterling outstanding at such time.
The European Tranche Revolving Exposure of any Lender at any time shall be
such Lender's European Tranche Percentage of the total European Tranche
Revolving Exposure at such time.
"EUROPEAN TRANCHE REVOLVING LOAN" means a Loan made by a European
Tranche Lender pursuant to Section 2.01(b). Each European Tranche Revolving
Loan denominated in US Dollars shall be a Eurocurrency Loan or an ABR Loan,
and each European Tranche Revolving Loan denominated in Euro or Sterling
shall be a Eurocurrency Loan.
"EVENT OF DEFAULT" has the meaning assigned to such term in
Article VII.
"EXCHANGE RATE" means on any day, for purposes of determining the
US Dollar Equivalent of any other currency, the rate at which such other
currency may be exchanged into US Dollars at the time of determination on
such day on the Reuters
9
WRLD Page for such currency. In the event that such rate does not appear on any
Reuters WRLD Page, the Exchange Rate shall be determined by reference to such
other publicly available service for displaying exchange rates as may be agreed
upon by the Administrative Agent and the Company, or, in the absence of such an
agreement, such Exchange Rate shall instead be the arithmetic average of the
spot rates of exchange of the Applicable Agent in the market where its foreign
currency exchange operations in respect of such currency are then being
conducted, at or about such time as the Applicable Agent shall elect after
determining that such rates shall be the basis for determining the Exchange
Rate, on such date for the purchase of US Dollars for delivery two Business Days
later; PROVIDED that if at the time of any such determination, for any reason,
no such spot rate is being quoted, the Applicable Agent may use any reasonable
method it deems appropriate to determine such rate, and such determination shall
be conclusive absent manifest error.
"EXCLUDED TAXES" means, with respect to either Agent, any Lender,
any Issuing Bank or any other recipient of any payment to be made by or on
account of any obligation of the Company or any Borrower hereunder, (a)
income or franchise taxes imposed on (or measured by) its net income by the
United States of America or, in the case of any Lender, the jurisdiction in
which its applicable lending office is located, (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by any
other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Company
under Section 2.19(b)), any withholding tax that is imposed (other than as a
result of the operation of the CAM Exchange) by the United States on payments
from locations in the United States of America by the Company or a Borrower
that is a Domestic Subsidiary to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office)
or is attributable to such Foreign Lender's failure to comply with
Section 2.17(e), except to the extent that (i) such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Company or any
Borrower with respect to such withholding tax pursuant to Section 2.17(a) or
(ii) such withholding tax shall have resulted from the making of any payment
to a location other than the office designated by the Applicable Agent or
such Lender for the receipt of payments of the applicable type from the
applicable Borrower.
"EXISTING LETTERS OF CREDIT" means the outstanding letters of
credit set forth on Schedule 2.06A.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the quotations for such
day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
10
"FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer or controller of the Company.
"FOREIGN LENDER" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Company is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"FOREIGN SUBSIDIARY" shall mean any Subsidiary that is not a
Domestic Subsidiary.
"FORM S-4" means the Form S-4 Registration Statement filed by IAC
and the Company with the Securities and Exchange Commission on April 25,
2005, as amended on or before June 17, 2005.
"GAAP" means generally accepted accounting principles in the United
States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States
of America, any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness of any other Person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or lease
property, securities or services for the purpose of assuring the owner of
such Indebtedness of the payment thereof (including pursuant to any
"synthetic lease" financing), (c) to maintain working capital, equity capital
or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or
(d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness; PROVIDED, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"GUARANTEE AGREEMENT" means (a) a Guarantee Agreement in
substantially the form of Exhibit C by the Company and each Material
Subsidiary that is a Domestic Subsidiary or (b) in connection with the
Guarantee of the Obligations by each Material Subsidiary that is a Foreign
Subsidiary and is not a CFC, another guarantee agreements or similar
agreements (subject in each case to such limits as shall be required under
applicable local law) Guaranteeing the Obligations and in form and substance
reasonably satisfactory to the Administrative Agent.
11
"GUARANTEE REQUIREMENT" means, at any time on or after the
Effective Date, the requirement that:
(i) the Administrative Agent shall have received from the Company and
each Material Subsidiary that is a Domestic Subsidiary (A) a counterpart of
the Guarantee Agreement referred to in clause (a) of the definition of
Guarantee Agreement duly executed and delivered on behalf of such Loan
Party or (B) in the case of any Person that becomes such a Subsidiary after
the Effective Date or any such Subsidiary that is not a Loan Party on the
Effective Date but elects to become a Loan Party after the Effective Date,
a supplement to the Guarantee Agreement, in the form specified therein,
duly executed and delivered on behalf of such Loan Party, and in each case,
such Guarantee Agreement shall be in full force and effect and enforceable
against each such Loan Party;
(ii) the Administrative Agent shall have received from each Material
Subsidiary that is a Foreign Subsidiary and is not a CFC a counterpart of a
Guarantee Agreement referred to in clause (a) or (b) of the definition of
Guarantee Agreement, or a supplement thereto in the form specified therein,
duly executed and delivered on behalf of such Loan Party, and in each case,
such Guarantee Agreement shall be in full force and effect and enforceable
against each such Loan Party; and
(iii) each Loan Party shall have obtained all material consents and
approvals required to be obtained by it in connection with the execution
and delivery of all Loan Documents to which it is a party and the
performance of its obligations thereunder.
Notwithstanding the foregoing, a Subsidiary shall not be required to
Guarantee any Obligation if the Company shall have advised the Administrative
Agent that it would be a violation of applicable law for such Subsidiary to
take such action.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"IAC" means IAC/InterActiveCorp, a Delaware corporation.
"IAC AGREEMENTS" means each of the Separation Agreement, Tax
Sharing Agreement, Employee Matters Agreement and Transition Services
Agreement, in each case in substantially the form of the draft attached as an
exhibit to the Form S-4 with no changes therefrom other than changes that are
not materially detrimental to the creditworthiness of the Company and the
Subsidiaries or to the rights of the Lenders.
"IAC INDENTURES" means each of (a) IAC's Indenture dated as of
December 16, 2002, as amended from time to time, governing IAC's 7.00% Senior
Notes
12
due 2013, and (b) IAC's Indenture dated as of November 23, 1998, as
amended from time to time, governing IAC's 6-3/4% Senior Notes due 2005.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations
of such Person in respect of the deferred purchase price of property or
services, (e) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (f) all Guarantees by
such Person of Indebtedness of others, (g) all Capital Lease Obligations and
all Synthetic Lease Obligations of such Person, (h) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty, (i) all Securitization
Transactions of such Person and (j) all obligations, contingent or otherwise,
of such Person in respect of bankers' acceptances. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Person's ownership interest in
or other relationship with such entity, except to the extent the terms of
such Indebtedness provide that such Person is not liable therefor; PROVIDED,
that Indebtedness of any Person shall not include (i) trade payables,
(ii) endorsements of checks, bills of exchange and other instruments for
deposit or collection in the ordinary course of business, (iii) customer
deposits and advances and interest payable thereon in the ordinary course of
business in accordance with customary trade terms and other obligations
incurred in the ordinary course of business through credit on an open account
basis customarily extended to such Person in connection with the purchase of
goods or services, and (iv) obligations under overdraft arrangements with
banks outside the United States incurred in the ordinary course of business
to cover working capital needs.
"INDEMNIFIED Taxes" means Taxes other than Excluded Taxes.
"INFORMATION MEMORANDUM" means the Confidential Information
Memorandum dated June 2005 relating to the Company and the Transactions.
"INTEREST ELECTION REQUEST" means a request by a Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.08.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September
and December, (b) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and,
in the case of a Eurocurrency Borrowing with an Interest Period of more than
three months' duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months' duration after the first day
of such Interest Period, and (c) with respect to any Swingline Loan, the day
that such Loan is required to be repaid.
13
"INTEREST PERIOD" means, with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day (or, if there is no numerically
corresponding day, then the last day) in the calendar month that is one, two,
three or six months (or, with the consent of each Lender, nine or twelve
months) thereafter, as the applicable Borrower may elect; PROVIDED, that (i)
if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless,
in the case of a Eurocurrency Borrowing only, such next succeeding Business
Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (ii) any Interest Period
pertaining to a Eurocurrency Borrowing that commences on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall
end on the last Business Day of the last calendar month of such Interest
Period. For purposes hereof, the date of a Borrowing initially shall be the
date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"ISSUING BANK" means each of JPMorgan Chase Bank, N.A., Bank of
America, N.A., and any other Lender that has entered into an Issuing Bank
Agreement, each in its capacity as an issuer of Letters of Credit hereunder,
and its successors in such capacity as provided in Section 2.06(i). Each
Issuing Bank may, in its discretion, arrange for one or more Letters of
Credit to be issued by Affiliates of such Issuing Bank, in which case the
term "Issuing Bank" shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate.
"ISSUING BANK AGREEMENT" means an agreement among the Company, the
Administrative Agent and a financial institution pursuant to which such
financial institution agrees to act as an Issuing Bank hereunder, in the form
of Exhibit A-2 or any other form approved by the Administrative Agent.
"LC COMMITMENT" means, as to any Issuing Bank, the maximum
permitted amount of the LC Exposure that may be attributable to Letters of
Credit issued by such Issuing Bank. The initial amount of each Issuing
Bank's LC Commitment is set forth on Schedule 2.06 or in such Issuing Bank's
Issuing Bank Agreement.
"LC DISBURSEMENT" means a payment made by an Issuing Bank pursuant
to a Letter of Credit. The amount of any LC Disbursement made by an Issuing
Bank in an Alternative Currency and not reimbursed by the applicable Borrower
shall be determined as set forth in paragraph (e) or (l) of Section 2.06 as
applicable.
"LC EXCHANGE RATE" means, on any day, with respect to US Dollars in
relation to any Alternative Currency, the rate at which US Dollars may be
exchanged into such currency, as set forth at approximately 12:00 noon, New
York City time, on such day on the applicable Reuters World Currency Page.
In the event that any such rate does not appear on the applicable Reuters
World Currency Page, the LC Exchange Rate shall be determined by reference to
such other publicly available service for displaying
14
exchange rates as may be agreed upon by the Applicable Agent and the Company or,
in the absence of such agreement, such LC Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange of the Applicable Agent, at or
about 11:00 a.m., London time, on such date for the purchase of such Alternative
Currency, with US Dollars for delivery two Business Days later; PROVIDED that if
at the time of any such determination, for any reason, no such spot rate is
being quoted, the Applicable Agent, after consultation with the Company, may use
any reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate of
the US Dollar Equivalents of the undrawn amounts of all outstanding Letters
of Credit at such time plus (b) the aggregate of the US Dollar Equivalents of
all LC Disbursements that have not yet been reimbursed by or on behalf of the
applicable Borrower at such time. The LC Exposure of any Lender at any time
shall be its US Tranche Percentage of the total LC Exposure at such time.
"LC PARTICIPATION CALCULATION DATE" means, with respect to any LC
Disbursement made in a currency other than US Dollars, (a) the date on which
the applicable Issuing Bank shall advise the Applicable Agent that it
purchased with US Dollars the currency used to make such LC Disbursement, or
(b) if such Issuing Bank shall not advise the Applicable Agent that it made
such a purchase, the date on which such LC Disbursement is made.
"LENDERS" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Assumption. Unless the context otherwise
requires, the term "Lenders" includes the Swingline Lender.
"LETTER OF CREDIT" means any letter of credit issued pursuant to
this Agreement, and, as of the Effective Date, the Existing Letters of Credit.
"LEVERAGE RATIO" means, on any date, the ratio of (a) Consolidated
Funded Debt as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Company ended on such date.
"LIBO RATE" means, with respect to any Eurocurrency Borrowing
denominated in any currency for any Interest Period, the rate appearing on
the applicable page of the Telerate Service for such currency (or on any
successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Applicable Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in the London interbank market) at
approximately 11:00 a.m., London time, on the Quotation Date for such
Interest Period, as the rate for deposits in such currency with a maturity
comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO RATE" with respect to
15
such Eurocurrency Borrowing for such Interest Period shall be the rate at which
deposits in such currency the US Dollar Equivalent of which is US$5,000,000 and
for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party (other than any third
party that is not exempt from the automatic stay provisions of the Bankruptcy
Code, as provided in Section 555 thereof) with respect to such securities.
"LOAN DOCUMENTS" means this Agreement, the Guarantee Agreements,
the Borrowing Subsidiary Agreements, the Borrowing Subsidiary Terminations,
any letter of credit applications referred to in Section 2.06(a) or (b), any
promissory notes delivered pursuant to Section 2.10(e), and the Issuing Bank
Agreements.
"LOAN PARTIES" means the Company and the Subsidiary Loan Parties.
"LOANS" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"LOCAL TIME" means (a) with respect to a Loan or Borrowing
denominated in US Dollars or any Letter of Credit, New York City time, and
(b) with respect to a Loan or Borrowing made in any other currency, London
time.
"LONDON AGENT" means J.P. Morgan Europe Limited.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, results of operations, properties, assets or financial
condition of the Company and the Subsidiaries, taken as a whole, (b) the
ability of the Loan Parties, taken as a whole, to perform their obligations
under the Loan Documents or (c) the rights of or benefits available to the
Lenders under any Loan Document.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans
and Letters of Credit), or obligations in respect of one or more Swap
Agreements, of any one or more of the Company and the Subsidiaries in an
aggregate principal amount exceeding US$25,000,000. For purposes of
determining Material Indebtedness, the "amount" of the obligations of the
Company or any Subsidiary in respect of any Swap Agreement at any time shall
be the maximum aggregate principal amount (giving effect to any netting
agreements) that the Company or such Subsidiary would be required to pay if
such Swap Agreement were terminated at such time.
16
"MATERIAL SUBSIDIARY" means, at any time, each Subsidiary other
than Subsidiaries that (a) together with their own Subsidiaries, do not
represent more than 2% for any such Subsidiary, or more than 10% in the
aggregate for all such Subsidiaries, of either (i) Consolidated Total Assets
or (ii) Consolidated Revenues of the Company and the Subsidiaries at the end
of or for the period of four fiscal quarters most recently ended and (b) do
not own Equity Interests or Indebtedness (other than de minimis Indebtedness)
of any Material Subsidiary; PROVIDED that each Subsidiary that is a Borrowing
Subsidiary under this Agreement shall in any event be a Material Subsidiary.
"MATURITY DATE" means the fifth anniversary of the Effective Date.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"OBLIGATIONS" has the meaning assigned to such term in the
Guarantee Agreement.
"OECD" means the Organization for Economic Cooperation and
Development.
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PARTICIPANT" has the meaning set forth in Section 9.04(c)(i).
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
vendors' and lessors' Liens (and deposits to obtain the release of such
Liens), setoff rights and other like Liens imposed by law (or contract, to
the extent that such contractual Liens are similar in nature and scope to
such Liens imposed by law), arising in the ordinary course of business and
securing obligations that (i) are not overdue by more than 30 days or (ii)
are being contested in good faith by appropriate proceedings; PROVIDED that
(A) the Company or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP, (B) such contest
effectively suspends collection of the contested obligation and the
enforcement of any Lien securing such obligation and (C) the
17
failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, disability, unemployment insurance
and other similar plans or programs and other social security laws or
regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Company or any Subsidiary;
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED HOLDERS" means Barry Diller, Liberty Media Corporation,
their respective Affiliates, and any group of which any of the foregoing is,
in terms of both economic and voting interest, one of the principal members.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of the United States of America (including
U.S. Treasury bills, notes, and bonds), which are backed by the full
faith and credit of the United States of America;
(b) direct obligations of any agency of the United States of
America, which are backed by the full faith and credit of the United
States of America;
(c) direct obligations of, and obligations fully guaranteed by, any
of the fifty United States that are rated investment grade by Standard &
Poors or by Moody's, including general obligation and revenue notes and
bonds, insured bonds (including all insured bonds having, at such date
of acquisition, a credit rating of Aaa by Moody's and AAA by S&P) &
refunded bonds (reissued bonds collateralized by U.S. Treasury
securities);
(d) Indebtedness of any county or other local governmental body
within the United States having, at such date of acquisition, a credit
rating of Aaa by Moody's and AAA by S&P;
18
(e) non-U.S. Dollar denominated indebtedness of other sovereign
countries having, at such date of acquisition, a credit rating of Aaa by
Moody's and AAA by S&P;
(f) non-U.S. Dollar denominated indebtedness of government agencies
having, at such date of acquisition, a credit rating of Aaa by Moody's
and AAA by S&P;
(g) mortgage-backed securities of the United States of America
and/or any agency thereof that are fully guaranteed by the same.
Mortgage-backed securities that are purchased on a TBA
("To-Be-Announced") basis must have a settlement date of less than three
months from date of purchase;
(h) collateralized mortgage obligations of the United States of
America and/or any agency thereof, which are backed by the full faith
and credit of the United States of America;
(i) commercial paper issued by any corporation or bank having a
maturity of nine months or less and having, at such date of acquisition,
a credit rating of A1 or the equivalent thereof from S&P or P1 or the
equivalent thereof from Moody's;
(j) money market investments, bankers acceptances, certificates of
deposits, notes or time deposits issued by any domestic bank which has a
combined capital and surplus and undivided profits of not less than
US$500,000,000;
(k) money market investments, bankers acceptances, certificates of
deposit, in each case directly guaranteed by any commercial bank
organized under the laws of a member nation of the European Union or the
OECD ranked in the 100 largest banks in the world (as measured by assets
and ranked by American Banker Journal) denominated in US Dollars,
Sterling, Euro, Canadian Dollars or Australian Dollars;
(l) direct obligations of corporations, banks and agencies
including: medium term notes (MTN) and bonds, structured notes and
Eurodollar/Yankee notes and bonds in each case having, at the date of
acquisition, a credit rating of BBB+ from S&P or Baa1 from Moody's;
(m) repurchase and reverse repurchase agreements for securities
described in clauses (a) and (c) above, with a financial institution
described in clause (j) above;
(n) asset-backed securities having, at the date of acquisition, a
credit rating of BBB+ from S&P or Baa1 from Moody's; and
19
(o) other investments determined by the Company or any Subsidiary
to entail credit risks not materially greater than those associated with
the foregoing investments and approved in writing by the Administrative
Agent.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which the
Company or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"PRIME RATE" means the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank N.A., as its prime rate in
effect at its principal office in New York City; each change in the Prime
Rate shall be effective from and including the date such change is publicly
announced as being effective.
"QUOTATION DATE" means (i) with respect to any Eurocurrency
Borrowing denominated in any currency other than Sterling for any Interest
Period, two Business Days prior to the commencement of such Interest Period
and (ii) with respect to any Eurocurrency Borrowing denominated in Sterling
for any Interest Period, the first Business Day of such Interest Period.
"REGISTER" has the meaning set forth in Section 9.04.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, trustees, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing more than 50% of the sum
of the total Revolving Credit Exposures and unused Commitments at such time.
"RESTRICTED PAYMENT" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in the Company or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any such Equity Interests in the Company or any Subsidiary
or any option, warrant or other right to acquire any such Equity Interests in
the Company or any Subsidiary.
"REVOLVING CREDIT EXPOSURE" means (a) with respect to any Lender at
any time, the sum at such time of such Lender's US Tranche Revolving Exposure
and European Tranche Revolving Exposure at such time, and (b) with respect to
any Tranche at any time, the total US Tranche Revolving Exposures and the
total European Tranche Revolving Exposures, as applicable, at such time.
20
"REVOLVING LOAN" means a Loan made pursuant to Section 2.01.
"S&P" means Standard & Poor's.
"SECURITIZATION TRANSACTION" means any transfer by the Company or
any Subsidiary of accounts receivable or interests therein (a) to a trust,
partnership, corporation or other entity, which transfer is funded in whole
or in part, directly or indirectly, by the incurrence or issuance by the
transferee or any successor transferee of Indebtedness, fractional undivided
interests or securities that are to receive payments from, or that represent
interests in, the cash flow derived from such accounts receivable or
interests, or (b) directly to one or more investors or other purchasers. The
amount of any Securitization Transaction shall be deemed at any time to be
the aggregate principal or stated amount of the Indebtedness, fractional
undivided interests or other securities referred to in the preceding sentence
or, if there shall be no such principal or stated amount, the uncollected
amount of the accounts receivable transferred pursuant to such Securitization
Transaction net of any such accounts receivable that have been written off as
uncollectible.
"SPIN-OFF" means the spin off by IAC of the Travel Business through
the contribution of certain of its subsidiaries to the Company and the
distribution of common stock and Class B common stock of the Company to
holders of the common stock and Class B common stock, respectively, of IAC,
all as described in the Form S-4 Registration Statement filed by IAC and the
Company with the Securities and Exchange Commission on April 25, 2005, as
amended from time to time prior to the consummation of the Spin-Off.
"SPIN-OFF DATE" means the date on which the Spin-Off is consummated.
"STATUTORY RESERVE RATE" means, with respect to any currency, a
fraction (expressed as a decimal), the numerator of which is the number one
and the denominator of which is the number one minus the aggregate of the
maximum reserve, liquid asset, fees or similar requirements (including any
marginal, special, emergency or supplemental reserves or other requirements)
established by any central bank, monetary authority, the Board, the Financial
Services Authority, the European Central Bank or other Governmental Authority
for any category of deposits or liabilities customarily used to fund loans in
such currency, expressed in the case of each such requirement as a decimal.
Such reserve percentages shall include those imposed pursuant to Regulation D
of the Board. Eurocurrency Loans shall be deemed to be subject to such
reserve, liquid asset or similar requirements without benefit of or credit
for proration, exemptions or offsets that may be available from time to time
to any Lender under any applicable law, rule or regulation, including
Regulation D. The Statutory Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in any reserve, liquid asset or
similar requirement.
"STERLING" or "(POUND)" means the lawful currency of the United
Kingdom.
21
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at
any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or
held, or (b) that is, as of such date, otherwise Controlled, by the parent or
one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Company.
"SUBSIDIARY LOAN PARTY" means (a) each Borrower and (b) each other
Subsidiary required to provide a Guarantee of the Obligations under the
Guarantee Requirement.
"SWAP AGREEMENT" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial
or pricing indices or measures of economic, financial or pricing risk or
value or any similar transaction or any combination of these transactions;
PROVIDED that no phantom stock or similar plan providing for payments only on
account of services provided by current or former directors, officers,
employees or consultants of the Company or the Subsidiaries shall be a Swap
Agreement.
"SWINGLINE EXPOSURE" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its US Tranche Percentage of the
total Swingline Exposure at such time.
"SWINGLINE LENDER" means JPMorgan Chase Bank, N.A., in its capacity
as lender of Swingline Loans hereunder.
"SWINGLINE LOAN" means a Loan made pursuant to Section 2.05.
"SYNTHETIC LEASE OBLIGATIONS" of any Person means the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, under a synthetic, off-balance sheet or tax retention
lease, including any financing lease or other agreement for the use or
possession of property creating obligations that do not appear on the balance
sheet of such Person but which are characterized as the indebtedness of such
Person for U.S. tax purposes (without regard to accounting treatment), and
the amount of such obligations shall be the capitalized amount thereof that
would appear on a balance sheet of such Person under GAAP if such lease were
accounted for as a capital lease.
22
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TRANCHE" means a category of Commitments and extensions of credit
thereunder. For purposes hereof, each of the following comprises a separate
Tranche: (a) the US Tranche Commitments, the US Tranche Revolving Loans, and
Letters of Credit and Swingline Loans issued or made under the US Tranche
Commitments and (b) the European Tranche Commitments and the European Tranche
Revolving Loans. The categories of Commitments and extensions of credit
described under clauses (a) and (b) of the immediately preceding sentence
are, respectively, the "US TRANCHE" and the "EUROPEAN TRANCHE".
"TRANCHE PERCENTAGE" means, with respect to any Lender holding any
Commitment or Loan under the US Tranche or the European Tranche, such
Lender's US Tranche Percentage or European Tranche Percentage, as applicable.
"TRANSACTIONS" means the Spin-Off, the execution, delivery and
performance by the Loan Parties of the Loan Documents, the satisfaction of
the Guarantee Requirement, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.
"TRAVEL BUSINESS" means IAC's travel and travel-related businesses
to be spun off to the Company as described in the Form S-4.
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"US DOLLAR EQUIVALENT" means, on any date of determination, (a)
with respect to any amount in US Dollars, such amount, and (b) with respect
to any amount in any currency other than US Dollars, the equivalent in US
Dollars of such amount, determined by the Administrative Agent using the
Exchange Rate or the LC Exchange Rate, as applicable, with respect to such
currency in effect for such amount on such date. The US Dollar Equivalent at
any time of the amount of any Letter of Credit, LC Disbursement or Loan
denominated in any currency other than US Dollars shall be the amount most
recently determined as provided in Section 1.06(b).
"US DOLLARS" or "US$" refers to lawful money of the United States
of America.
"US TRANCHE" has the meaning assigned to such term under the
definition of "Tranche".
"US TRANCHE COMMITMENT" means, with respect to each US Tranche
Lender, the commitment of such US Tranche Lender to make US Tranche Revolving
Loans and to acquire participations in US Tranche Letters of Credit and
Swingline Loans, expressed as an amount representing the maximum aggregate
permitted amount of such Lender's US Tranche Revolving Exposure hereunder, as
such commitment may be (a)
23
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's US Tranche Commitment is set
forth on Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender shall have assumed its US Tranche Commitment, as applicable. The
initial aggregate amount of the Lenders' US Tranche Commitments is
US$750,000,000.
"US TRANCHE LENDER" means a Lender with a US Tranche Commitment or
with US Tranche Revolving Exposure.
"US TRANCHE PERCENTAGE" means, with respect to any US Tranche
Lender, the percentage of the total US Tranche Commitments represented by
such Lender's US Tranche Commitment. If the US Tranche Commitments have
terminated or expired, the US Tranche Percentages shall be determined based
upon the US Tranche Commitments most recently in effect, giving effect to any
assignments.
"US TRANCHE REVOLVING EXPOSURE" means, at any time, the sum of (a)
the aggregate principal amount of the US Tranche Revolving Loans outstanding
at such time, (b) the LC Exposure at such time and (c) the Swingline Exposure
at such time. The US Tranche Revolving Exposure of any Lender at any time
shall be such Lender's US Tranche Percentage of the total US Tranche
Revolving Exposure at such time.
"US TRANCHE REVOLVING LOAN" means a Loan made by a US Tranche
Lender pursuant to Section 2.01(a). Each US Tranche Revolving Loan shall be
a Eurocurrency Loan or an ABR Loan.
"WHOLLY OWNED SUBSIDIARY" means any Subsidiary all the Equity
Interests in which, other than directors' qualifying shares and/or other
nominal amounts of Equity Interests that are required to be held by Persons
(other than the Company or its Wholly Owned Subsidiaries, as applicable)
under applicable law, are owned, directly or indirectly, by the Company.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (E.G., a "US
Tranche Revolving Loan") or by Type (E.G., a "Eurocurrency Loan") or by Class
and Type (E.G., a "Eurocurrency US Tranche Revolving Loan"). Borrowings
also may be classified and referred to by Class (E.G., a "US Tranche
Revolving Borrowing") or by Type (E.G., a "Eurocurrency Borrowing") or by
Class and Type (E.G., a "Eurocurrency US Tranche Revolving Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to
24
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. ACCOUNTING TERMS; GAAP. (a) Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; PROVIDED
that, if the Company notifies the Administrative Agent that the Company
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies
the Company that the Required Lenders request an amendment to any provision
hereof for such purpose), regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied
immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith.
(b) All pro forma computations required to be made hereunder giving
effect to any acquisition, investment, sale, disposition, merger or similar
event shall reflect on a pro forma basis such event and, to the extent
applicable, the historical earnings and cash flows associated with the assets
acquired or disposed of and any related incurrence or reduction of Indebtedness,
and may also reflect (x) any projected synergies or similar benefits expected
to be realized as a result of such event to the extent such synergies or similar
benefits would be permitted to be reflected in financial statements prepared
in compliance with Article 11 of Regulation S-X under the Securities Act of
1933, as amended and (y) any other demonstrable cost-savings and other
adjustments not included in the foregoing clause (x) that are reasonably
anticipated by the Company to be achieved in connection with any such event
for the 12-month period following the consummation of such event, which the
Company determines are reasonable and as set forth in a certificate of the
chief financial officer of the Company; provided, that the aggregate
additions to Consolidated EBITDA, for any period being tested, pursuant to
this clause (y) shall not exceed 10% of the amount which could have been
included in Consolidated EBITDA in the absence of the adjustment pursuant to
this clause (y).
SECTION 1.05. EFFECTUATION OF SPIN-OFF. Each of the representations
and warranties of the Company contained in this Agreement (and all corresponding
25
definitions) are at all times on and after the Spin-Off Date made after
giving effect to the Spin-Off and the other Transactions to occur on the
Spin-Off Date, unless the context otherwise requires.
SECTION 1.06. CURRENCY TRANSLATION. (a) For purposes of any
determination under Section 6.01, 6.02 or 6.03 or under paragraph (f), (g) or
(k) of Section 7.01, all amounts incurred, outstanding or proposed to be
incurred or outstanding in currencies other than US Dollars shall be translated
into US Dollars at currency exchange rates in effect on the date of such
determination; PROVIDED that no Default or Event of Default shall arise as a
result of any limitation set forth in US Dollars in Section 6.01, 6.02 or
6.03 being exceeded solely as a result of changes in currency exchange rates
from those rates applicable at the time or times Indebtedness, Liens or Sale
and Lease-Back Transactions were initially consummated in reliance on the
exceptions under such Sections. For purposes of any determination under
Section 6.08, the amount of each disposition or other applicable transaction
denominated in a currency other than US Dollars shall be translated into US
Dollars at the applicable currency exchange rate in effect on the date such
disposition or other transaction is consummated. Such currency exchange
rates shall be determined in good faith by the Company and the Borrowers.
(b)(i) The Administrative Agent shall determine the US Dollar
Equivalent of any Letter of Credit denominated in an Alternative Currency as of
the date of the issuance thereof and on the first Business Day of each Calendar
Month on which such Letter of Credit is outstanding, in each case using the
Exchange Rate for the applicable currency in relation to US Dollars in effect
on the date of determination, and each such amount shall be the US Dollar
Equivalent of such Letter of Credit until the next required calculation
thereof pursuant to this subparagraph. The Administrative Agent shall in
addition determine the US Dollar Equivalent of any Letter of Credit
denominated in an Alternative Currency as provided in Section 2.06(l).
(ii) The Administrative Agent shall determine the US Dollar
Equivalent of any Borrowing denominated in an Alternative Currency as of the
date of the commencement of the initial Interest Period therefor and as of
the date of the commencement of each subsequent Interest Period therefor, in
each case using the Exchange Rate for the applicable currency in relation to
US Dollars in effect on the date that is three Business Days prior to the
date on which the applicable Interest Period shall commence, and each such
amount shall, except as provided in the next sentence, be the US Dollar
Equivalent of such Borrowing until the next required calculation thereof
pursuant to this subparagraph. The Administrative Agent shall in addition
determine the US Dollar Equivalent of any Borrowing denominated in an
Alternative Currency as of the CAM Exchange Date, and such amount shall be
the US Dollar Equivalent of such Borrowing for all purposes of Section 7.02.
(iii) The Administrative Agent shall notify the Company, the
applicable Lenders and the applicable Issuing Bank of each calculation of the
US Dollar Equivalent of each Letter of Credit, Borrowing and LC Disbursement.
26
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. (a) Subject to the terms and conditions
set forth herein, each US Tranche Lender agrees to make US Tranche Revolving
Loans denominated in US Dollars to the Borrowers from time to time during the
Availability Period in an aggregate principal amount that will not result in (a)
such Lender's US Tranche Revolving Exposure exceeding such Lender's US Tranche
Commitment, (b) the sum of the total US Tranche Revolving Exposures exceeding
the total US Tranche Commitments or (c) the aggregate Revolving Credit Exposures
exceeding the aggregate Commitments. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrowers may borrow, prepay and
reborrow US Tranche Revolving Loans.
(b) Subject to the terms and conditions set forth herein, each
European Tranche Lender agrees to make European Tranche Revolving Loans
denominated in US Dollars, Euro and Sterling to the Borrowers from time to time
during the Availability Period in an aggregate principal amount that will not
result in (a) such Lender's European Tranche Revolving Exposure exceeding such
Lender's European Tranche Commitment, (b) the sum of the total European Tranche
Revolving Exposures exceeding the total European Tranche Commitments or
(c) the aggregate Revolving Credit Exposures exceeding the aggregate
Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrowers may borrow, prepay and reborrow
European Tranche Revolving Loans.
SECTION 2.02. LOANS AND BORROWINGS. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Loans of the same Class, Type and
currency made by the Lenders ratably in accordance with their respective
Commitments of the applicable Class. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; PROVIDED that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.14, each Revolving Borrowing shall be
comprised (i) in the case of Borrowings denominated in US Dollars, entirely of
ABR Loans or Eurocurrency Loans as the applicable Borrower may request in
accordance herewith, and (ii) in the case of any other currency, entirely of
Eurocurrency Loans. Each Swingline Loan shall be an ABR Loan. Each Lender
at its option may make any Eurocurrency Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; PROVIDED that
any exercise of such option shall not affect the obligation of the applicable
Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurocurrency
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is
an integral multiple of the Borrowing Multiple and not less than the
Borrowing Minimum; PROVIDED that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the
27
entire unused balance of the total Commitments under the applicable Tranche or
that is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.06(e). Borrowings of more than one Type and Class may
be outstanding at the same time; PROVIDED that there shall not at any time be
more than a total of six Eurocurrency Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrowers shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. REQUESTS FOR REVOLVING BORROWINGS. To request a
Revolving Borrowing, the applicable Borrower shall notify the Applicable Agent
of such request by telephone (a) in the case of a Eurocurrency Borrowing
denominated in US Dollars, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing, (b) in the case of a
Borrowing denominated in an Alternative Currency, not later than 11:00 a.m.,
London time, four Business Days before the date of the proposed Borrowing, or
(c) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City
time, one Business Day before the date of the proposed Borrowing; PROVIDED
that any such notice of an ABR Revolving Borrowing to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.06(e) may be
given not later than 10:00 a.m., New York City time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Applicable Agent of a written Borrowing Request in a form approved by the
Applicable Agent and signed by the applicable Borrower. Each such telephonic
and written Borrowing Request shall specify the following information in
compliance with Section 2.02:
(i) the aggregate amount and currency of the requested Borrowing;
(ii) the Class of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(v) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the applicable Borrower's account to
which funds are to be disbursed, which shall comply with the requirements
of Section 2.07.
If no currency is specified with respect to any requested Borrowing, then the
applicable Borrower shall be deemed to have selected US Dollars. If no
election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be (A) if denominated in US Dollars, an
ABR Borrowing and (B) if denominated in any other
28
currency, a Eurocurrency Borrowing. If no Interest Period is specified with
respect to any requested Eurocurrency Revolving Borrowing, then the applicable
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Applicable Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. BORROWING SUBSIDIARIES. On or after the Effective
Date, the Company may designate any Wholly Owned Subsidiary of the Company as a
Borrowing Subsidiary by delivery to the Administrative Agent of a Borrowing
Subsidiary Agreement executed by such Subsidiary and the Company, and upon
such delivery such Subsidiary shall for all purposes of this Agreement be a
Borrowing Subsidiary and a party to this Agreement. Upon the execution by
the Company and delivery to the Administrative Agent of a Borrowing
Subsidiary Termination with respect to any Borrowing Subsidiary, such
Subsidiary shall cease to be a Borrowing Subsidiary and a party to this
Agreement; PROVIDED that no Borrowing Subsidiary Termination will become
effective as to any Borrowing Subsidiary (other than to terminate such
Borrowing Subsidiary's right to make further Borrowings under this Agreement)
at a time when any principal of or interest on any Loan to such Borrowing
Subsidiary or any Letter of Credit issued for the account of such Borrowing
Subsidiary shall be outstanding hereunder. Promptly following receipt of any
Borrowing Subsidiary Agreement or Borrowing Subsidiary Termination, the
Administrative Agent shall send a copy thereof to each Lender.
SECTION 2.05. SWINGLINE LOANS. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans denominated in US Dollars to the Borrowers from time to time during the
Availability Period in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding
Swingline Loans exceeding US$150,000,000 or (ii) the sum of the total US
Tranche Revolving Exposures exceeding the total US Tranche Commitments;
PROVIDED that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrowers may
borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the applicable Borrower shall notify
the Administrative Agent of such request by telephone (confirmed by telecopy),
not later than 12:00 noon, New York City time, on the day of a proposed
Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested
Swingline Loan. The Administrative Agent will promptly advise the Swingline
Lender of any such notice received from a Borrower. The Swingline Lender
shall make each Swingline Loan available to the applicable Borrower by means
of a credit to the general deposit account of such Borrower with the
Swingline Lender (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.06(e), by
remittance to the applicable Issuing Bank) by 3:00 p.m., New York City time,
on the requested date of such Swingline Loan.
29
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the US Tranche Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Lenders
will participate. Promptly upon receipt of such notice, the Administrative
Agent will give notice thereof to each US Tranche Lender, specifying in such
notice such Lender's US Tranche Percentage of such Swingline Loan or Loans.
Each US Tranche Lender hereby absolutely and unconditionally agrees, upon
receipt of notice as provided above, to pay to the Administrative Agent, for
the account of the Swingline Lender, such Lender's US Tranche Percentage of
such Swingline Loan or Loans. Each US Tranche Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a
Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each US Tranche Lender shall comply with its obligation under
this paragraph by wire transfer of immediately available funds, in the same
manner as provided in Section 2.07 with respect to Loans made by such Lender
(and Section 2.07 shall apply, MUTATIS MUTANDIS, to the payment obligations
of the Lenders), and the Administrative Agent shall promptly pay to the
Swingline Lender the amounts so received by it from the US Tranche Lenders.
The Administrative Agent shall notify the applicable Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received
by the Swingline Lender from a Borrower (or other party on behalf of a
Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent
to the US Tranche Lenders that shall have made their payments pursuant to
this paragraph and to the Swingline Lender, as their interests may appear;
PROVIDED that any such payment so remitted shall be repaid to the Swingline
Lender or to the Administrative Agent, as applicable, if and to the extent
such payment is required to be refunded to a Borrower for any reason. The
purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve a Borrower of any default in the payment thereof.
SECTION 2.06. LETTERS OF CREDIT. (a) GENERAL. Subject to the terms
and conditions set forth herein, each Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from
time to time during the Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by a Borrower to, or entered into by a Borrower with, an
Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control. The Existing Letters of Credit will, for all
purposes of this Agreement, be deemed to have been issued hereunder on the
Effective Date and will, for all purposes of this Agreement, constitute
Letters of Credit.
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(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the applicable
Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
applicable Issuing Bank) to the applicable Issuing Bank and the Administrative
Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall
be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the currency in which such Letter of Credit is to be
denominated (which shall be US Dollars or an Alternative Currency), the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the applicable Issuing Bank, the applicable Borrower also shall
submit a letter of credit application on such Issuing Bank's standard form in
connection with any request for a Letter of Credit; PROVIDED that any
provisions in any such letter of credit application that create Liens securing
the obligations of a Borrower thereunder or that are inconsistent with the
provisions of this Agreement shall be of no force or effect. A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the applicable Borrower
shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed
US$150,000,000, (ii) the total US Tranche Revolving Exposures shall not exceed
the total US Tranche Commitments, and (iii) the portion of the LC Exposure
attributable to Letters of Credit issued by any Issuing Bank shall not exceed
the LC Commitment of such Issuing Bank.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the
date that is five Business Days prior to the Maturity Date.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each US Tranche Lender, and each such Lender
hereby acquires from such Issuing Bank, a participation in such Letter of
Credit equal to such Lender's US Tranche Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Applicable Agent, for the account of the
applicable Issuing Bank, such Lender's US Tranche Percentage of each LC
Disbursement made by such Issuing Bank and not reimbursed by the applicable
Borrower on the date due as provided in paragraph (e) of this Section, or of
any reimbursement payment in respect of an LC Disbursement required to be
refunded to a Borrower for any reason. Such payment by the US Tranche
Lenders shall be made (i) if the currency of the applicable LC Disbursement
or reimbursement payment shall be US Dollars, then in the currency of
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such LC Disbursement and (ii) if the currency of the applicable LC Disbursement
or reimbursement payment shall be an Alternative Currency, the US Dollar
Equivalent thereof using the LC Exchange Rate in effect on the applicable LC
Participation Calculation Date). Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments or any fluctuation in currency values, and that
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) REIMBURSEMENT. If an Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the applicable Borrower shall reimburse such
LC Disbursement by paying to the Applicable Agent an amount in the currency of
such LC Disbursement equal to such LC Disbursement not later than 12:00 noon,
Local Time, on the date that such LC Disbursement is made, if such Borrower
shall have received notice of such LC Disbursement prior to 11:00 a.m., Local
Time, on such date, or, if such notice has not been received by such Borrower
prior to such time on such date, then not later than 12:00 noon, Local Time, on
(i) the Business Day that such Borrower receives such notice, if such notice is
received prior to 11:00 a.m., Local Time, on the day of receipt, or (ii) the
Business Day immediately following the day that such Borrower receives such
notice, if such notice is not received prior to such time on the day of receipt;
PROVIDED that, if such LC Disbursement is denominated in US Dollars and is not
less than the Borrowing Minimum for US Dollar denominated Loans, the applicable
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 or 2.05 that such payment be financed with an
ABR Revolving Borrowing or Swingline Loan in an equivalent amount and, to the
extent so financed, such Borrower's obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Borrowing or Swingline
Loan. If the applicable Borrower fails to make such payment when due, (A) if
such payment relates to a Letter of Credit denominated in an Alternative
Currency, automatically and with no further action required, the obligation of
such Borrower to reimburse the applicable LC Disbursement shall be permanently
converted into an obligation to reimburse the US Dollar Equivalent, calculated
using the LC Exchange Rates on the applicable LC Participation Calculation Date,
of such LC Disbursement and (B) in the case of each LC Disbursement, the
Applicable Agent shall notify each US Tranche Lender of the applicable LC
Disbursement, the amount of the payment then due from such Borrower in respect
thereof and such Lender's US Tranche Percentage thereof, and each Lender shall
pay in US Dollars to the Applicable Agent on the date such notice is received
its US Tranche Percentage of the payment then due from such Borrower, in the
same manner as provided in Section 2.07 with respect to Loans made by such
Lender (and Section 2.07 shall apply, MUTATIS MUTANDIS, to the payment
obligations of the Lenders), and the Applicable Agent shall promptly pay to the
Issuing Bank the amounts so received by it from the Lenders. Promptly following
receipt by the Applicable Agent of any payment from a Borrower pursuant to this
paragraph, the Applicable Agent shall distribute such payment to the applicable
Issuing Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing
Bank as their interests may appear.
32
Any payment made by a Lender pursuant to this paragraph to reimburse an Issuing
Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve the applicable Borrower of its obligation to reimburse such LC
Disbursement. If the applicable Borrower's reimbursement of, or obligation to
reimburse, any amounts in any Alternative Currency would subject the
Administrative Agent, the applicable Issuing Bank or any Lender to any stamp
duty, ad valorem charge or similar tax that would not be payable if such
reimbursement were made or required to be made in US Dollars, such Borrower
shall pay the amount of any such tax requested by the relevant Agent, Issuing
Bank or Lender.
(f) OBLIGATIONS ABSOLUTE. The obligation of each Borrower to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of
any Letter of Credit or this Agreement, or any term or provision therein, (ii)
any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by any Issuing Bank under a
Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or
equitable discharge of, or provide a right of setoff against, such Borrower's
obligations hereunder. None of the Agents, the Lenders, the Issuing Banks or
any of their Related Parties shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective
of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of
any draft, notice or other communication under or relating to any Letter of
Credit (including any document required to make a drawing thereunder), any
error in interpretation of technical terms or any consequence arising from
causes beyond the control of the applicable Issuing Bank; PROVIDED that the
foregoing shall not be construed to excuse an Issuing Bank from liability to
a Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by each Borrower to the
extent permitted by applicable law) suffered by such Borrower that are caused
by such Issuing Bank's failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of
gross negligence or willful misconduct on the part of an Issuing Bank (as
finally determined by a court of competent jurisdiction), such Issuing Bank
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit,
the applicable Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the
33
contrary, or refuse to accept and make payment upon such documents if such
documents are not in strict compliance with the terms of such Letter of Credit.
(g) DISBURSEMENT PROCEDURES. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The applicable
Issuing Bank shall promptly notify the Administrative Agent and the applicable
Borrower by telephone (confirmed by telecopy) of such demand for payment and
whether such Issuing Bank has made or will make an LC Disbursement thereunder;
PROVIDED that any failure to give or delay in giving such notice shall not
relieve the applicable Borrower of its obligation to reimburse such Issuing
Bank and the Lenders with respect to any such LC Disbursement.
(h) INTERIM INTEREST. If an Issuing Bank shall make any LC
Disbursement, then, unless the applicable Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the applicable
Borrower reimburses such LC Disbursement, (i) in the case of any LC Disbursement
denominated in US Dollars, and at all times following the conversion to US
Dollars of an LC Disbursement made in an Alternative Currency pursuant to
paragraph (e) or (l) of this Section, at the rate per annum then applicable
to ABR Revolving Loans, and (ii) if such LC Disbursement is made in an
Alternative Currency, at all times prior to its conversion to US Dollars
pursuant to paragraph (e) or (l) of this Section, at a rate equal to the rate
reasonably determined by the applicable Issuing Bank to be the cost to such
Issuing Bank of funding such LC Disbursement plus the Applicable Margin
applicable to Eurocurrency Revolving Loans at such time; PROVIDED that, if
the applicable Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.13(c) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
applicable Issuing Bank, except that interest accrued on and after the date
of payment by any Lender pursuant to paragraph (e) of this Section to
reimburse such Issuing Bank shall be for the account of such Lender to the
extent of such payment.
(i) REPLACEMENT OF AN ISSUING BANK. An Issuing Bank may be replaced
at any time by written agreement among the Company, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of an Issuing Bank.
At the time any such replacement shall become effective, the Company and the
Borrowers shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.12(b). From and after the effective date
of any such replacement, (i) the successor Issuing Bank shall have all the
rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit to be issued thereafter and (ii) references herein to
the term "Issuing Bank" shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks,
as the context shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to
34
such replacement (including the right to receive fees under Section 2.12(b)),
but shall not be required to issue additional Letters of Credit.
(j) CASH COLLATERALIZATION. If any Event of Default shall occur
and be continuing, on the Business Day that the Company receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, each Borrower shall deposit in an account with
the Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders and the Issuing Banks, an amount in cash equal to the
LC Exposure attributable to Letters of Credit issued for the account of such
Borrower as of such date plus any accrued and unpaid interest thereon;
PROVIDED that (i) amounts payable in respect of any Letter of Credit or LC
Disbursement shall be payable in the currency of such Letter of Credit or LC
Disbursement, except that LC Disbursements in an Alternative Currency in
respect of which the applicable Borrower's reimbursement obligations have
been converted to obligations in US Dollars as provided in paragraph (e)
above and interest accrued thereon shall be payable in US Dollars and (ii)
the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable,
without demand or other notice of any kind, upon the occurrence of any Event
of Default with respect to the Company or any Borrower described in
clause (h) or (i) of Article VII. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the applicable Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits, which investments shall be in
Permitted Investments and shall be made at the option and sole discretion of
the Administrative Agent and at the applicable Borrower's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse the Issuing Banks for LC
Disbursements for which they have not been reimbursed and, to the extent not
so applied, shall be held for the satisfaction of the reimbursement
obligations of the applicable Borrower for the LC Exposure at such time or,
if the maturity of the Loans has been accelerated (but subject to the consent
of Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Company and the
Borrowers under this Agreement. If a Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event
of Default, such amount (to the extent not applied as aforesaid) shall be
returned to such Borrower within three Business Days after all Events of
Default have been cured or waived.
(k) ISSUING BANK REPORTS. Unless otherwise agreed by the
Administrative Agent, each Issuing Bank shall report in writing to the
Administrative Agent (i) on or prior to each Business Day on which such Issuing
Bank issues, amends, renews or extends any Letter of Credit, the date of such
issuance, amendment, renewal or extension, and the currency and aggregate face
amount of the Letters of Credit issued, amended, renewed or extended by it and
outstanding after giving effect to such issuance,
35
amendment, renewal or extension (and whether the amount thereof shall have
changed), it being understood that such Issuing Bank shall not effect any
issuance, renewal, extension or amendment resulting in an increase in the amount
of any Letter of Credit without first obtaining written confirmation from the
Administrative Agent that such increase is then permitted under this Agreement,
(ii) on each Business Day on which such Issuing Bank makes any LC Disbursement,
the date, currency and amount of such LC Disbursement, (iii) on any Business Day
on which a Borrower fails to reimburse an LC Disbursement required to be
reimbursed to such Issuing Bank on such day, the date of such failure and the
currency and amount of such LC Disbursement and (iv) on any other Business Day,
such other information as the Administrative Agent shall reasonably request as
to the Letters of Credit issued by such Issuing Bank.
(l) CONVERSION. In the event that the Loans become immediately due
and payable on any date pursuant to Article VII, all amounts (i) that the
Borrowers are at the time or become thereafter required to reimburse or
otherwise pay to the Applicable Agent in respect of LC Disbursements made
under any Letter of Credit denominated in an Alternative Currency (other than
amounts in respect of which the Borrowers have deposited cash collateral, if
such cash collateral was deposited in the applicable currency), (ii) that the
Lenders are at the time or become thereafter required to pay to the
Applicable Agent (and the Administrative Agent is at the time or becomes
thereafter required to distribute to the applicable Issuing Bank) pursuant to
paragraph (e) of this Section in respect of unreimbursed LC Disbursements
made under any Letter of Credit denominated in an Alternative Currency and
(iii) of each Lender's participation in any Letter of Credit denominated in
an Alternative Currency under which an LC Disbursement has been made shall,
automatically and with no further action required, be converted into the US
Dollar Equivalent, calculated using the LC Exchange Rates on such date (or in
the case of any LC Disbursement made after such date, on the date such LC
Disbursement is made), of such amounts. On and after such conversion, all
amounts accruing and owed to the Applicable Agent, any Issuing Bank or any
Lender in respect of the obligations described in this paragraph shall accrue
and be payable in US Dollars at the rates otherwise applicable hereunder.
SECTION 2.07. FUNDING OF BORROWINGS. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds in the applicable currency by 12:00 noon, Local
Time, to the account of the Applicable Agent most recently designated by it
for such purpose by notice to the Lenders; PROVIDED that Swingline Loans
shall be made as provided in Section 2.05. The Applicable Agent will make
such Loans available to the applicable Borrower by promptly crediting the
amounts so received, in like funds, to an account of such Borrower maintained
with the Applicable Agent and designated by such Borrower in the applicable
Borrowing Request; PROVIDED that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be
remitted by the Administrative Agent to the applicable Issuing Bank.
(b) Unless the Applicable Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Applicable Agent such Lender's share of such Borrowing,
the Applicable Agent may
36
assume that such Lender has made such share available on such date in accordance
with paragraph (a) of this Section and may, in reliance upon such assumption,
make available to the applicable Borrower a corresponding amount. In such event,
if a Lender has not in fact made its share of the applicable Borrowing available
to the Applicable Agent, then the applicable Lender and the applicable Borrower
severally agree to pay to the Applicable Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to such Borrower to but excluding the date
of payment to the Applicable Agent, at (i) in the case of such Lender, (A) if
denominated in US Dollars, the greater of the Federal Funds Effective Rate and
a rate determined by the Applicable Agent in accordance with banking industry
rules on interbank compensation and (B) if denominated in an Alternative
Currency, a rate determined by the Applicable Agent in accordance with banking
industry rules on interbank compensation, or (ii) in the case of such Borrower,
if denominated in US Dollars, the interest rate applicable to ABR Loans and (B)
if denominated in an Alternative Currency, the interest rate applicable to the
subject Loan. If such Lender pays such amount to the Applicable Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.08. INTEREST ELECTIONS. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the
applicable Borrower may elect to convert any Borrowing denominated in US
Dollars to a different Type or to continue any Borrowing and, in the case of
a Eurocurrency Revolving Borrowing, may elect Interest Periods therefor, all
as provided in this Section. The applicable Borrower may elect different
options with respect to different portions of the affected Borrowing, in
which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each
such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the applicable Borrower
shall notify the Administrative Agent of such election by telephone by the
time that a Borrowing Request would be required under Section 2.03 if such
Borrower were requesting a Revolving Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Interest Election Request in a form approved by the
Administrative Agent and signed by such Borrower. Notwithstanding any other
provision of this Section, no Borrower shall be permitted to change the
currency of any Borrowing or to convert any Borrowing to a Type not available
under the Class of Commitments pursuant to which such Borrowing Drawing was
made.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
37
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing, a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the applicable Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If a Borrower fails to deliver a timely Interest Election
Request with respect to a Eurocurrency Revolving Borrowing prior to the end of
the Interest Period applicable thereto, then such Borrowing shall be repaid as
provided herein at the end of such Interest Period, unless such Borrowing is
denominated in US Dollars, in which case (unless it is so repaid) it shall be
converted to an ABR Borrowing at the end of such Interest Period.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the applicable Borrower, then, so long as
an Event of Default is continuing (i) in the case of Borrowings denominated
in US Dollars, (A) no outstanding Revolving Borrowing may be converted to or
continued as a Eurocurrency Borrowing and (B) unless repaid, each
Eurocurrency Revolving Borrowing shall be converted to an ABR Borrowing at the
end of the Interest Period applicable thereto, and (ii) in the case of
Borrowings denominated in Alternative Currencies, unless repaid, each
Eurocurrency Borrowing shall be continued as a Eurocurrency Borrowing with an
Interest Period of one month's duration.
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS; INCREASE OF
COMMITMENTS. (a) Unless previously terminated, the Commitments and each LC
Commitment shall terminate on the Maturity Date.
(b) The Company may at any time terminate, or from time to time
reduce, the Commitments; PROVIDED that (i) each reduction of the Commitments
under any Tranche shall be in an amount that is an integral multiple of the
Borrowing Multiple for US Dollar denominated Loans and not less than the
Borrowing Minimum for US Dollar
38
denominated Loans and (ii) the Company shall not terminate or reduce the
Commitments under any Tranche if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.11, the sum of the
Revolving Credit Exposures under such Tranche would exceed the total
Commitments under such Tranche.
(c) The Company shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Company
pursuant to this Section shall be irrevocable; PROVIDED that a notice of
termination of the Commitments of any Tranche delivered by the Company may
state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Company (by
notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or reduction of
the Commitments shall be permanent. Each reduction of the Commitments under
any Tranche shall be made ratably among the Lenders in accordance with their
respective Commitments under such Tranche.
(d) The Company may from time to time increase the aggregate amount
of Commitments under either Tranche pursuant to the provisions of this
paragraph.
(i) The Company may, by written notice to the Administrative Agent
(who shall promptly forward such notice to each Lender under the
applicable Tranche), request (A) that the total Commitments under either
Tranche be increased (a "COMMITMENT INCREASE") by an amount for each
increased Tranche of not less than US$25,000,000, and (B) at the election
of the Company, that simultaneous decreases (each a "COMMITMENT DECREASE")
be made to the Commitments under the other Tranche; PROVIDED that at no
time shall the aggregate amount of Commitment Increases effected
pursuant to this paragraph, when taken together with the aggregate
amount of new Commitments established under Section 9.02(c), exceed the
aggregate amount of Commitment Decreases effected pursuant to this
paragraph by more than US$250,000,000. Each such notice shall set forth
the amount of the requested Commitment Increase (and Commitment
Decrease, as applicable) in each Tranche, and the date on which such
adjustment is requested to become effective (which shall be not less
than 10 Business Days or more than 30 days after the date of such
notice), and shall offer each Lender holding a Commitment under any
increasing Tranche the opportunity to increase its Commitment in such
Tranche by its Tranche Percentage of the proposed increased amount.
Each such Lender shall, by notice to the Company and the Administrative
Agent given not more than five Business Days after the date of the
Company's notice, either agree to increase its applicable Commitment by
all or a portion of the offered amount (each Lender so agreeing being an
"INCREASING LENDER" with respect to such Tranche) or decline to increase
its applicable Commitment (and any Lender that does not deliver such a
notice within such period of five Business Days shall be deemed to have
declined to increase its Commitment) (each Lender so declining or deemed
to have declined
39
being a "NON-INCREASING LENDER" with respect to such Tranche). In the event
that on the fifth Business Day after the Company shall have delivered a
notice pursuant to the first sentence of this paragraph the Lenders shall
have agreed pursuant to the preceding sentence to increase their
Commitments under any Tranche by an aggregate amount less than the increase
in the total Commitments requested by the Company, the Company may arrange
for one or more banks or other entities (any such bank or other entity
being called an "AUGMENTING LENDER" with respect to such Tranche), which
may include any Lender, to extend Commitments in an aggregate amount equal
to the unsubscribed amount; PROVIDED that each Augmenting Lender, if not
already a Lender hereunder, shall be subject to the approval of the
Administrative Agent and, if affected by such increase, each Issuing Bank
(which approval shall not be unreasonably withheld) and the Borrowers and
each Augmenting Lender shall execute all such documentation as the
Administrative Agent shall reasonably specify to evidence the Commitment of
such Augmenting Lender and/or its status as a Lender hereunder. Any
Commitment Increase under any Tranche may be made in an amount less than
the Commitment Increase requested by the Company if the Company is unable
to arrange for, or chooses not to arrange for, Augmenting Lenders. Not less
than three Business Days prior to the effective date (the "INCREASE
EFFECTIVE DATE") of any Commitment Increase under any Tranche pursuant to
this Section 2.09(d), the Company shall by written notice to the
Administrative Agent confirm the Commitment Decreases, if any, to be made
to the Commitments under the other Tranches specified in the original
notice given in respect of the proposed adjustments or shall specify the
Commitment Decreases, if any, to be made in lieu thereof.
(ii) On the Increase Effective Date, (A) the aggregate principal
amount of the Revolving Loans outstanding under each Tranche under which a
Commitment Increase will become effective (the "INITIAL LOANS" under such
Tranche) immediately prior to giving effect to the applicable Commitment
Increase on the Increase Effective Date shall be deemed to be repaid, (B)
after the effectiveness of the Commitment Increase, the Borrowers holding
Commitments under such Tranche shall be deemed to have made new Borrowings
(the "SUBSEQUENT BORROWINGS") in an aggregate principal amount equal to the
aggregate principal amount of the Initial Loans under such Tranche and of
the Types and for the Interest Periods specified in a Borrowing Request
delivered to the Administrative Agent in accordance with Section 2.03, (C)
each Lender under such Tranche shall pay to the Administrative Agent in
same day funds an amount equal to the difference, if positive, between (1)
such Lender's Tranche Percentage (calculated after giving effect to the
Commitment Increase) of the Subsequent Borrowings and (2) such Lender's
Tranche Percentage (calculated without giving effect to the Commitment
Increase) of the Initial Loans, (D) after the Administrative Agent receives
the funds specified in clause (C) above, the Administrative Agent shall pay
to each Lender under such Tranche the portion of such funds that is equal
to the difference, if positive, between (1) such Lender's Tranche
Percentage (calculated without giving effect to the Commitment Increase)
of the Initial Loans and (2) such Lender's Tranche Percentage (calculated
after giving effect to the
40
Commitment Increase) of the amount of the Subsequent Borrowings, (E) each
Non-Increasing Lender, each Increasing Lender and each Augmenting Lender
shall be deemed to hold its Tranche Percentage of each Subsequent Borrowing
(each calculated after giving effect to the Commitment Increase) and (F)
each applicable Borrower shall pay each Increasing Lender and each
Non-Increasing Lender any and all accrued but unpaid interest on the
Initial Loans. The deemed payments made pursuant to clause (A) above in
respect of each Eurocurrency Loan shall be subject to indemnification by
the Borrowers pursuant to the provisions of Section 2.16 if the Increase
Effective Date occurs other than on the last day of the Interest Period
relating thereto and breakage costs result.
(iii) On the Increase Effective Date, each Commitment Decrease
specified in the notice by the Company pursuant to paragraph (d)(i) above
(as adjusted pursuant to the last sentence of such paragraph) shall be made
ratably among the Lenders holding Commitments under the decreasing Tranche
in accordance with their respective Commitments under such Tranche.
(iv) Commitment Increases, Commitment Decreases and new Commitments
created pursuant to this Section 2.09(d) shall become effective on the date
specified in the original notice delivered by the Company pursuant to the
first sentence of paragraph (d)(i) above.
(v) Notwithstanding the foregoing, no increase in the Commitments
under any Tranche (or in any Commitment of any Lender) or addition of an
Augmenting Lender shall become effective under this Section unless (A) on
the date of such increase, the conditions set forth in paragraphs (a) and
(b) of Section 4.02 shall be satisfied (without giving effect to the
parenthetical in such paragraph (a)) and the Administrative Agent shall
have received a certificate to that effect dated such date and executed by
a Financial Officer, and (B) the Administrative Agent shall have received
(with sufficient copies for each of the Lenders) documents consistent with
those delivered pursuant to Section 4.03(c) in connection with the
designation of a new Borrowing Subsidiary as to the corporate power and
authority of the applicable Borrowers to borrow hereunder after giving
effect to such increase.
SECTION 2.10. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) Each Borrower
hereby unconditionally promises to pay (i) to the Applicable Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
outstanding to it on the Maturity Date, and (ii) to the Swingline Lender the
then unpaid principal amount of each Swingline Loan on the earlier of the
Maturity Date and the first date after such Swingline Loan is made that is the
15th or last day of a calendar month and is at least two Business Days after
such Swingline Loan is made; PROVIDED that on each date that a Revolving
Borrowing denominated in US Dollars is made, each Borrower shall repay all
Swingline Loans then outstanding to it. The Borrowers will repay the principal
amount of each Loan and the accrued interest thereon in the currency of such
Loan.
41
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the applicable
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, each Borrower under such Class
shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and
its registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).
SECTION 2.11. PREPAYMENT OF LOANS. (a) The Borrowers shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, without any premium or penalty (but including amounts owed under
Section 2.16) subject to prior notice in accordance with paragraph (b) of this
Section.
(b) In the event and on each occasion that the sum of the Revolving
Credit Exposures under any Tranche exceeds the sum of the Commitments under
such Tranche, the Borrowers shall not later than the next Business Day prepay
Revolving Borrowings of the applicable Tranche in an aggregate amount equal
to such excess, and in the event that after such prepayment of Borrowings any
such excess shall remain, the Borrowers shall deposit cash in an amount equal
to such excess as collateral for the reimbursement obligations of the
Borrowers in respect of Letters of Credit under such Tranche; PROVIDED that
if such excess results from a change in currency exchange rates, such
prepayment and deposit shall be required to be made not later than the fifth
Business Day after the day on which the Administrative Agent shall have given
the Company notice of such excess. Any cash so deposited (and any cash
previously deposited pursuant to this paragraph) with the Administrative
Agent shall be held in an account over which the Administrative Agent shall
have sole dominion and control, including exclusive rights of
42
withdrawal. Other than any interest earned on the investment of such deposits,
which investment shall be in Permitted Investments and shall be made in the
discretion of the Administrative Agent and at the Borrowers' risk and
expense, such deposits shall not bear interest. Interest or profits, if any,
on such investments shall accumulate in such account. Moneys in such account
shall be applied by the Administrative Agent to reimburse each Issuing Bank
for LC Disbursements under such Tranche for which it has not been reimbursed
and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrowers for the LC Exposure under such
Tranche at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of Lenders holding a majority of the LC
Exposures), be applied to satisfy other obligations of the Borrowers under
this Agreement. If the Borrowers have provided cash collateral to secure the
reimbursement obligations of the Borrowers in respect of Letters of Credit,
then, so long as no Event of Default shall exist, such cash collateral shall
be released to the Borrowers if so requested by the Company at any time if
and to the extent that, after giving effect to such release, the aggregate
amount of the Revolving Credit Exposures under the applicable Tranche would
not exceed the aggregate amount of the Commitments under such Tranche.
(c) The applicable Borrower shall notify the Applicable Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Borrowing, not later than 11:00 a.m., Local time,
four Business Days before the date of prepayment, (ii) in the case of prepayment
of an ABR Revolving Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment; PROVIDED that in the case of any prepayment required
to be made within one Business Day under paragraph (b) above the applicable
Borrower will give such notice as soon as practicable. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; PROVIDED that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.09, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.09. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Revolving Borrowing shall be in
an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a
Revolving Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.13.
SECTION 2.12. FEES. (a) The Company and the Borrowers agree to pay to
the Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the average daily unused amount of the
Commitments of such Lender during the period from and including the Effective
Date to but excluding the date on which the last of such Commitments
terminates. Accrued commitment fees shall be payable in arrears on the last
day of March, June, September
43
and December of each year and on the date on which the Commitments of any Class
terminate, commencing on the first such date to occur after the date hereof. All
commitment fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day). For purposes of computing commitment fees, a Commitment
of a Lender under any Tranche shall be deemed to be used to the extent of the
outstanding Loans and LC Exposure of such Lender under such Tranche (and the
Swingline Exposure of such Lender shall be disregarded for such purpose prior to
the acquisition by such Lender of a participation therein pursuant to Section
2.05(c)).
(b) The Company and the Borrowers agree to pay (i) to the
Administrative Agent for the account of each Lender a participation fee with
respect to its participations in Letters of Credit, which shall accrue at
the Applicable Rate on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date on which the last of such Lender's Commitments terminates and
the date on which such Lender ceases to have any LC Exposure, and (ii) to each
Issuing Bank a fronting fee, which shall accrue at the rate or rates per annum
separately agreed upon between the Company and such Issuing Bank during the
period from and including the Effective Date to but excluding the later of the
date the LC Commitment of such Issuing Bank is reduced to zero and the date on
which there ceases to be any LC Exposure, as well as such Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
Effective Date; PROVIDED that all such fees shall be payable on the date on
which the Commitments terminate and any such fees accruing after the date on
which the Commitments terminate shall be payable on demand. Any other fees
payable to any Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Banks, in the case of fees payable to them) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto.
Fees paid shall not be refundable under any circumstances.
SECTION 2.13. INTEREST. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
44
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Company or any Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration
or otherwise, such overdue amount shall bear interest, after as well as
before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section or (ii) in the case of
any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; PROVIDED that (i) interest accrued pursuant
to paragraph (c) of this Section shall be payable on demand, (ii) in the
event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the
date of such repayment or prepayment and (iii) in the event of any conversion
of any Eurocurrency Revolving Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion. All interest shall be payable in the
currency in which the applicable Loan is denominated.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that (i) interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate and
(ii) interest on Eurocurrency Loans denominated in Sterling shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate for such Interest
Period; or
(b) the Administrative Agent is advised by the majority in interest
of the Lenders under the affected Tranche that the Adjusted LIBO Rate for
such Interest Period will not adequately and fairly reflect the cost to
such Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and
the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Company and the Lenders that
the circumstances giving rise to such notice no longer exist, (i) any
Interest Election Request that requests the conversion of any Revolving
Borrowing to, or continuation of any Revolving
45
Borrowing as, a Eurocurrency Borrowing shall be ineffective, and unless repaid
such Borrowing shall, if denominated in US Dollars, be made as an ABR Borrowing,
or if denominated in an Alternative Currency, bear interest at such rate as the
Administrative Agent shall determine adequately and fairly reflects the cost to
the affected Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period plus the Applicable
Rate, and (ii) if any Borrowing Request requests a Eurocurrency Revolving
Borrowing, such Borrowing shall, if denominated in US Dollars, be made as an
ABR Borrowing, or if denominated in an Alternative Currency, bear interest
at such rate as the Administrative Agent shall determine adequately and fairly
reflects the cost to the affected Lenders (or Lender) of making or maintaining
their Loans (or its Loan) included in such Borrowing for such Interest Period
plus the Applicable Rate; PROVIDED that if the circumstances giving rise to such
notice affect only one Type of Borrowings, then the other Type of Borrowings
shall be permitted.
SECTION 2.15. INCREASED COSTS. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurocurrency Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or
such Issuing Bank of participating in, issuing or maintaining any Letter of
Credit or to reduce the amount of any sum received or receivable by such
Lender or such Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Company and the Borrowers will pay to such Lender or
such Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or such Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or any Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or such Issuing Bank's capital or on the
capital of such Lender's or such Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by
such Issuing Bank, to a level below that which such Lender or such Issuing
Bank or such Lender's or such Issuing Bank's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
or such Issuing Bank's policies and the policies of such Lender's or such
Issuing Bank's holding company with respect to capital adequacy), then from
time to time the Company and the Borrowers will pay to such Lender or such
Issuing Bank, as the case may be, such
46
additional amount or amounts as will compensate such Lender or such Issuing
Bank or such Lender's or such Issuing Bank's holding company for any such
reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or such Issuing Bank or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section, as the case may be, setting forth in reasonable detail the
manner in which such amount or amounts have been determined, shall be
delivered to the Company and shall be conclusive absent manifest error. The
Company and the Borrowers shall pay such Lender or such Issuing Bank, as the
case may be, the amount shown as due on any such certificate within
10 Business Days after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation; PROVIDED
that the Company and the Borrowers shall not be required to compensate a
Lender or an Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender or
such Issuing Bank, as the case may be, notifies the Company of the Change in
Law giving rise to such increased costs or reductions and of such Lender's or
such Issuing Bank's intention to claim compensation therefor; PROVIDED
FURTHER that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.
(e) If an Agent, a Lender or an Issuing Bank determines, in its sole
discretion, that it has received a refund of any amount as to which it has
been indemnified by the Company or a Borrower pursuant to this Section 2.15,
it shall pay over such refund to the Company or such Borrower (but only to
the extent of indemnity payments made by the Company or such Borrower under
this Section 2.15 with respect to the events giving rise to such refund), net
of all out-of-pocket expenses of such Agent, such Lender or such Issuing Bank
and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); PROVIDED, that the
Company and the Borrowers, upon the request of such Agent, such Lender or
such Issuing Bank, agree to repay the amount paid over to the Company or a
Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) in the event such Agent, such Lender or such
Issuing Bank is required to repay such refund to such Governmental
Authority. This Section shall not be construed to require any Agent, any
Lender or any Issuing Bank to make available its accounting records (or any
other information which it deems confidential) to the Company or a Borrower
or any other Person.
SECTION 2.16. BREAK FUNDING PAYMENTS. In the event of (a) the payment
of any principal of any Eurocurrency Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurocurrency Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurocurrency Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice may
47
be revoked under Section 2.11(b) and is revoked in accordance therewith), or
(d) the assignment of any Eurocurrency Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the applicable
Borrower pursuant to Section 2.19 or the CAM Exchange, then, in any such
event, the applicable Borrower shall compensate each Lender for the loss,
cost and expense attributable to such event. In the case of a Eurocurrency
Loan, such loss, cost or expense to any Lender shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (i) the amount
of interest which would have accrued on the principal amount of such Loan had
such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been
the Interest Period for such Loan), over (ii) the amount of interest which
would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such
period, for deposits in the applicable currency of a comparable amount and
period from other banks in the eurocurrency market. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Company and shall
be conclusive absent manifest error. The Company and the Borrowers shall pay
such Lender the amount shown as due on any such certificate within 20 days
after receipt thereof.
SECTION 2.17. TAXES. (a) Any and all payments by or on account of any
obligation of the Company and the Borrowers hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; PROVIDED that if the Company or any
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable
to additional sums payable under this Section) the Applicable Agent, Lender
or Issuing Bank (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Company or the
applicable Borrower shall make such deductions and (iii) the Company or the
applicable Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Company and the Borrowers shall pay any Other
Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) The Company and the Borrowers shall indemnify each Agent, Lender
and Issuing Bank, within 20 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by such Agent, such
Lender or such Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Company or any Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
48
liability delivered to the Company by a Lender or an Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or an Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Company or a Borrower to a Governmental Authority, the
Company or such Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Company or a Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Company or such Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Company or such Borrower as will permit such payments to be made without
withholding or at a reduced rate.
(f) If an Agent, a Lender or an Issuing Bank determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Company or a Borrower or with respect to
which the Company or a Borrower has paid additional amounts pursuant to this
Section 2.17, it shall pay over such refund to the Company or such Borrower
(but only to the extent of indemnity payments made, or additional amounts
paid, by the Company or such Borrower under this Section 2.17 with respect to
the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of such Agent, such Lender or such Issuing Bank and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); PROVIDED, that the Company and the
Borrowers, upon the request of such Agent, such Lender or such Issuing Bank,
agree to repay the amount paid over to the Company or a Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to such Agent or such Lender in the event such Agent, such Lender
or such Issuing Bank is required to repay such refund to such Governmental
Authority. This Section shall not be construed to require any Agent, any
Lender or any Issuing Bank to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Company
or a Borrower or any other Person.
SECTION 2.18. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS. (a) The Company and the Borrowers shall make each payment required to
be made by them hereunder or under any other Loan Document (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts
payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to the time
expressly required hereunder or under such other Loan Document for such
payment (or, if no such time is expressly required, prior to 12:00 noon,
Local Time), on the date when due, in immediately available funds, without
set-off or counterclaim. Any amounts received after such time on any date
may, in the
49
discretion of the Administrative Agent, be deemed to have been received on
the next succeeding Business Day for purposes of calculating interest thereon.
All such payments shall be made to the Applicable Agent to the applicable
account specified by it for the account of the Lenders or, in any such case, to
such other account as the Applicable Agent shall from time to time specify in a
notice delivered to the Company, except payments to be made directly to an
Issuing Bank or the Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made
directly to the Persons entitled thereto and payments pursuant to other Loan
Documents shall be made to the Persons specified therein. The Applicable Agent
shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any
payment under any Loan Document shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business Day,
and, in the case of any payment accruing interest, interest thereon shall be
payable for the period of such extension. Except as otherwise provided herein,
(i) all payments of principal, interest or reimbursement obligations in respect
of any Loan or Letter of Credit shall be made in the currency of such Loan or
Letter of Credit and (ii) all other payments under each Loan Document (including
all fees) shall be made in US Dollars.
(b) If at any time insufficient funds are received by and available
to the Applicable Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment
of principal and unreimbursed LC Disbursements then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans under any Tranche resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Revolving Loans and
participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender under such Tranche,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in LC
Disbursements and Swingline Loans of other Lenders in such Tranche to the
extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Revolving Loans and participations
in LC Disbursements and Swingline Loans; PROVIDED that (i) if any such
participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Company or any Borrower pursuant to and in accordance
with the express terms of this Agreement or any payment obtained by a Lender
as consideration for the assignment of or sale of a participation in any of
its Loans or participations in LC Disbursements to any
50
assignee or participant, other than to the Company, a Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Company and each Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Company and each Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Company or such Borrower, as the case may be, in the
amount of such participation.
(d) Unless the Applicable Agent shall have received notice from the
Company prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or an Issuing Bank hereunder that the
Company and the Borrowers will not make such payment, the Applicable Agent may
assume that the Company or a Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or such Issuing Bank, as the case may be, the amount due. In such event,
if the Company or a Borrower has not in fact made such payment, then each of the
Lenders or such Issuing Bank, as the case may be, severally agrees to repay to
the Applicable Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Applicable Agent, at (A) if such amount is denominated in US Dollars, the
greater of the Federal Funds Effective Rate and a rate determined by the
Applicable Agent in accordance with banking industry rules on interbank
compensation, and (B) if such amount is denominated in an Alternative Currency,
a rate determined by the Applicable Agent in accordance with banking industry
rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by either Agent for
the account of such Lender to satisfy such Lender's obligations under such
Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If
any Lender requests compensation under Section 2.15, or if the Company or
any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Company
and the Borrowers hereby agree to pay all reasonable costs and expenses incurred
by any Lender in connection with any such designation or assignment.
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(b) If any Lender requests compensation under Section 2.15, or if the
Company or any Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant
to Section 2.17, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Company may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign
and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); PROVIDED that (i) the Company shall have received the prior
written consent of the Administrative Agent, the Issuing Banks and the
Swingline Lender, which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Company or a Borrower (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments
required to be made pursuant to Section 2.17, such assignment will result in
a reduction in such compensation or payments. A Lender shall not be required
to make any such assignment and delegation if, prior thereto, as a result of
a waiver by such Lender or otherwise, the circumstances entitling the Company
to require such assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company and each Borrower represents and warrants to the
Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Company and the
Subsidiaries is duly organized, validly existing and (to the extent the
concept is applicable in such jurisdiction) in good standing under the laws
of the jurisdiction of its organization (except, in the case of Subsidiaries
that are not Material Subsidiaries, where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect), has all requisite power and authority to carry on its
business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions are to
be entered into by each Loan Party are within such Loan Party's corporate or
other organizational powers and have been duly authorized by all necessary
corporate or other organizational and, if required, stockholder or other
equity holder action. This Agreement has been duly executed and delivered by
the Company and each Borrower and constitutes (assuming due execution by the
Lenders), and each other Loan Document
52
to which any Loan Party is to be a party, when executed and delivered by such
Loan Party, will constitute (assuming due execution by the Lenders), a legal,
valid and binding obligation of the Company, such Borrower or such Loan Party
(as the case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions
(a) do not require any consent or approval of, registration or filing with
or any other action by any Governmental Authority, except those that have been
obtained or made and are in full force and effect or those the failure to obtain
which could not reasonably be expected to result in a Material Adverse Effect,
(b) will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Company or any of the Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a default
under any indenture, or other material agreement or instrument binding upon the
Company or any of the Material Subsidiaries or its assets, or require any
payment to be made by the Company or any of the Material Subsidiaries
thereunder, (d) will not violate or result in a default under any IAC Indenture,
or give rise to a right thereunder to require any payment to be made, or any
liability to be assumed, by the Company or any of the Material Subsidiaries, and
(e) will not result in the creation or imposition of any Lien on any asset of
the Company or any of the Material Subsidiaries.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE. (a) The
Company has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and for
the fiscal year ended December 31, 2004, reported on by Ernst & Young LLP,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended March 31, 2005 (or, if financial statements
for a later fiscal quarter have been delivered pursuant to Section 4.01(c)(ix),
as of and for such fiscal quarter and the portion of the fiscal year ended on
the last day of such fiscal quarter), certified by its chief financial officer.
Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Company and
its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
(b) There has not occurred since December 31, 2004, any event,
condition or circumstance that has had or could be reasonably be expected to
have a material adverse effect in the business, results of operations,
properties, assets or financial condition of the Company and the Subsidiaries,
taken as a whole.
(c) Except as disclosed in the financial statements referred to above
or the notes thereto or in the Information Memorandum and except for the
Disclosed Matters, after giving effect to the Transactions, none of the Company
or the Subsidiaries has, as of the Effective Date, any material contingent
liabilities.
53
(d) The pro forma financial statements contained in the Form S-4
(i) have been prepared in good faith based on assumptions believed by the
Company to be reasonable when made, (ii) are based on the best information
available to the Company as of the date of the Form S-4, (iii) accurately
reflect all material adjustments necessary to give effect to the Transactions
(other than any initial Loans made pursuant to this Agreement) and (iv) present
fairly, subject to the qualifications described therein and in the accompanying
notes, the pro forma financial position of the Company and its consolidated
Subsidiaries as of March 31, 2005, as if the Transactions had occurred on such
date.
SECTION 3.05. PROPERTIES. (a) Each of the Company and the Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for minor defects in title that do
not interfere with its ability to conduct its business as currently conducted
or to utilize such properties for their intended purposes.
(b) Each of the Company and the Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, except for intellectual property the
failure to own or license which, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, and the use
thereof by the Company and the Subsidiaries does not infringe upon the rights
of any other Person, except for any such infringements that, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of the Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Company nor any
of the Subsidiaries (i) has failed to comply in all material respects with
any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received written
notice of any claim with respect to any Environmental Liability or (iv) knows
of any basis reasonably likely to result in any Environmental Liability.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the Company
and the Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure
54
to do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. No Default has occurred and is continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. Neither the
Company nor any of the Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of the Company and the Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, would reasonably be
expected to result in a Material Adverse Effect. The excess of accumulated
benefit obligations under each Plan (based on assumptions used for purposes of
Statement of Financial Accounting Standards No. 87), if any, over the fair
market value of the assets of such Plan, would not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. DISCLOSURE. Neither the Information Memorandum nor any
of the other reports, financial statements, certificates or other written
factual information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or any Loan Document or delivered hereunder or thereunder (as modified
or supplemented by other information so furnished), taken as a whole, contains
any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading as of the date furnished; PROVIDED that, with
respect to projected financial information, the Company represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION 3.12. GUARANTEE REQUIREMENT. On the Effective Date, after
giving effect to the Transactions to occur on the Effective Date, and at all
times thereafter, the Guarantee Requirement will be satisfied.
SECTION 3.13. SUBSIDIARIES. As of the Effective Date, the Company
and the Subsidiaries set forth on Schedule 3.13 comprise all the Travel
Business. Part A of Schedule 3.13 sets forth as of the Effective Date the name
of, and the ownership interest of the Company and the Subsidiaries in each
Subsidiary, in each case as of the Effective Date. Part B Schedule 3.13 sets
forth as of the Effective Date each Subsidiary that will
55
not be a Subsidiary Loan Party together in each case with a statement of the
reason why such Subsidiary will not be a Subsidiary Loan Party.
SECTION 3.14. USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the
Loans and the issuance of the Letters of Credit have been and will be used
solely for the general corporate purposes of the Company and the
Subsidiaries, including working capital, capital expenditures and
acquisitions. No part of the proceeds of any Loan have been or will be used,
whether directly or indirectly, for any purpose that entails a violation of
any of the Regulations of the Board, including Regulations T, U and X.
SECTION 3.15. BORROWING SUBSIDIARIES. Each Borrowing Subsidiary is
subject to civil and commercial law with respect to its obligations under this
Agreement, and the execution, delivery and performance by such Borrowing
Subsidiary of the applicable Borrowing Subsidiary Agreement and this
Agreement constitute and will constitute private and commercial acts rather
than public or governmental acts. Each Borrowing Subsidiary that is not a
Domestic Subsidiary has validly given its consent to be sued in respect of
its obligations under the Borrowing Subsidiary Agreement and this Agreement.
Each Borrowing Subsidiary that is not a Domestic Subsidiary has waived every
immunity (sovereign or otherwise) to which it or any of its properties would
otherwise be entitled from any legal action, suit or proceeding, from
jurisdiction of any court or from setoff or any legal process (whether
service or notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise) under the laws of
the jurisdiction of its incorporation in respect of its Obligations under the
Borrowing Subsidiary Agreement and this Agreement. The waiver by such
Borrowing Subsidiary described in the immediately preceding sentence is
legal, valid and binding on such Borrowing Subsidiary.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to make
Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence reasonably satisfactory to
the Administrative Agent (which may include telecopy transmission of a
signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement.
(b) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of
each Loan Party, the authorization of the Transactions and any other
legal matters relating to the Loan
56
Parties, the Loan Documents or the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel.
(c) On the Spin-Off Date:
(i) The Guarantee Requirement shall have been satisfied.
(ii) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of each of (i) Wachtell, Lipton, Rosen & Katz, counsel
for the Company, substantially in the form of Exhibit D-1, (ii) in-house
counsel for the Company, substantially in the form of Exhibit D-2 and
(iii) local counsel in each jurisdiction in which a Loan Party is
located, substantially in the form of Exhibit D-3.
(iii) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President or
a Financial Officer of the Company, confirming compliance with the
conditions set forth in paragraph (a) (without giving effect to the
parenthetical therein) and paragraph (b) of Section 4.02 and
subparagraphs (i), (v), (vi) and (viii) of paragraph (c) of this Section.
(iv) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket
expenses (including fees, charges and disbursements of counsel) required
to be reimbursed or paid by the Company hereunder.
(v) There shall not have occurred since December 31, 2004, any event,
condition or circumstance that has had or could be reasonably be
expected to have a material adverse effect on the business, results of
operations, properties, assets or financial condition of the Company and
the Subsidiaries, and the Travel Business, taken as a whole.
(vi) The Spin-Off and all related Transactions (including the transfer
to the Company of all the subsidiaries included in the Travel Business as
contemplated by the Form S-4) shall be consummated on terms consistent
with applicable law and (other than as a result of changes not
materially detrimental to the creditworthiness of the Company and the
Subsidiaries or to the rights of the Lenders) with the information set
forth in the Form S-4 and the pro forma financial information and
projections delivered to the Lenders. There shall not have been any
material cash payments by the Company and its Subsidiaries to IAC in
respect of the Spin-Off other than those expressly contemplated by the
Form S-4 and other cash payments in an aggregate amount not to exceed
US$50,000,000 for all such payments.
(vii) The Lenders shall have received copies of and be reasonably
satisfied with the form and substance of each of (A) the solvency opinion
of Duff
57
& Phelps, LLC, delivered to the Board of Directors of IAC (as well as of
the confirmation of such opinion delivered immediately prior to the
Spin-Off) and (B) the opinion delivered to IAC as to the tax-free nature
of the Spin-Off.
(viii) Other than as set forth in the Form S-4, after giving effect
to the Transactions, (a) the Company and the Subsidiaries shall have
outstanding no Indebtedness, committed credit facilities, Guarantees,
letters of credit or preferred stock other than (i) the Commitments and
Letters of Credit, (ii) other Indebtedness set forth in the Form S-4 as
being outstanding on the Spin-Off Date after giving effect to the
Spin-Off, (iii) surety bond obligations of the Company and its
Subsidiaries in an aggregate amount not to exceed $72,000,000, and (iv)
other Indebtedness in an aggregate amount not to exceed US$50,000,000
for all such indebtedness, (b) the Company and the Subsidiaries shall
have no material contingent obligations other than those described in
the Form S-4, and (c) no Loans shall be outstanding and the Company
shall have not less than US$100,000,000 of available cash.
(ix) The Lenders shall have received unaudited consolidated balance
sheets and related statements of income and cash flows of the Company and
the Subsidiaries included in the Travel Business for each fiscal quarter
ended after December 31, 2004, but at least 60 days before the Spin-Off
Date, which financial statements shall not be materially inconsistent
with the financial statements or projections previously provided to the
Lenders.
(x) There shall be no litigation or administrative proceeding that
could reasonably be expected to have a material adverse effect on the
Spin-Off or on the business, results of operations, properties, assets or
financial condition of the Company and the Subsidiaries, and the Travel
Business, taken as a whole.
(xi) All requisite governmental authorities and material third parties
shall have approved or consented to the Transactions to the extent
required(except to the extent not materially detrimental to the
creditworthiness of the Company and the Subsidiaries or to the rights of
the Lenders), all applicable notice or appeal periods shall have expired
and there shall be no governmental or judicial action, actual or
threatened, that could reasonably be expected to restrain, prevent or
impose burdensome conditions on the Transactions.
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
and of the Issuing Banks to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or
waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City
time, on August 31, 2005 (and, in the event such conditions shall not have
been so satisfied or waived, the Commitments and the LC Commitments shall
terminate at such time).
58
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, and of each Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction
of the following conditions:
(a) The representations and warranties of the Loan Parties set forth
in the Loan Documents (other than the representations and warranties set
forth in Sections 3.04(b) and 3.06) shall be true and correct in all
material respects on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be
continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter
of Credit shall be deemed to constitute a representation and warranty by the
Company and each Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
SECTION 4.03. CREDIT EVENTS IN RESPECT OF EACH BORROWING SUBSIDIARY.
The obligations of the Lenders to make the initial Loans to or for the account
of each Borrowing Subsidiary (other than the Borrowing Subsidiaries that are
party to this Agreement) are subject to the satisfaction of the following
additional conditions:
(a) The Administrative Agent (or its counsel) shall have received
from each of such Borrowing Subsidiary and the Company either (i) a
counterpart of a Borrowing Subsidiary Agreement signed on behalf of such
party or (ii) written evidence reasonably satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a
counterpart of a Borrowing Subsidiary Agreement.
(b) The Administrative Agent shall have received, on behalf of itself
and the Lenders, a favorable written opinion of counsel for such Borrowing
Subsidiary (which counsel shall be reasonably acceptable to the
Administrative Agent), in form and substance reasonably satisfactory to
the Administrative Agent, (i) dated the date of the applicable Borrowing
Subsidiary Agreement, (ii) addressed to the Administrative Agent and the
Lenders, and (iii) covering such other matters as the Administrative
Agent shall reasonably request.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of
such Borrowing Subsidiary, the authorization by it of the Transactions
to which it will be party and any other legal matters relating to such
Borrowing Subsidiary, the Loan Documents or the Transactions, all in
form and substance reasonably satisfactory to the Administrative Agent
and its counsel.
59
(d) The Administrative Agent shall have received a certificate, dated
the date of the applicable Borrowing Subsidiary Agreement and signed by
the President, a Vice President or a Financial Officer of the Company,
confirming compliance with the conditions set forth in paragraphs (a)
and (b) of Section 4.02.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements have been reimbursed by the Borrowers,
the Company and each Borrower covenants and agrees with the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS; RATINGS CHANGE AND OTHER
INFORMATION. The Company will furnish to the Administrative Agent and each
Lender:
(a) within 5 Business Days of each date the Company is required to
file a report on Form 10-K for any fiscal year with the Securities and
Exchange Commission (giving effect to any extension of such date available
under paragraph (b) of Rule 12b-25 under the Securities Exchange Act of
1934), its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for
such year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on by Ernst & Young LLP or
other independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and
without any qualification or exception as to the scope of such audit) to
the effect that such consolidated financial statements present fairly in
all material respects the financial condition and results of operations
of the Company and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied;
(b) within 5 days of each date the Company is required to file a
report on Form 10-Q for any fiscal quarter with the Securities and
Exchange Commission (giving effect to any extension of such date available
under paragraph (b) of Rule 12b-25 under the Securities Exchange Act of
1934), its consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for
such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet,
as of the end of) the previous fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Company and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes;
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(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Company (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections
6.10 and 6.11 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 that has had a material effect
thereon and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of a Financial Officer of the
Company certifying as to the identity of each Material Subsidiary
existing at the date of such certificate and setting forth for each as
of such date the name of, and the ownership interest of the Company and
the Subsidiaries in such Material Subsidiary;
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed
by the Company or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of
the functions of said Commission, or with any national securities
exchange, or distributed by the Company to its shareholders generally,
as the case may be; and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of
the Company or any Subsidiary, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender may reasonably
request.
Information required to be delivered pursuant to this Section 5.01 shall be
deemed to have been delivered if such information, or one or more annual or
quarterly reports containing such information, shall have been posted by the
Administrative Agent on an IntraLinks or similar site to which the Lenders
have been granted access or shall be available on the website of the
Securities and Exchange Commission at http://www.sec.gov; PROVIDED that the
Company shall deliver paper copies of such information to any Lender that
requests such delivery. Information required to be delivered pursuant to
this Section 5.01 may also be delivered by electronic communications pursuant
to procedures approved by the Administrative Agent.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Company will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Company or any Subsidiary that could reasonably be expected to be
adversely determined
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and, if adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected
to result in a Material Adverse Effect; and
(d) the written assertion by IAC or any creditor of IAC that any
liability or liabilities (whether matured, contingent or otherwise) of IAC
in an aggregate amount exceeding US$25,000,000 should be paid or assumed
by Expedia.
Each notice delivered under this Section shall be accompanied by a statement
of a Financial Officer or other executive officer of the Company setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
SECTION 5.03. EXISTENCE; CONDUCT OF BUSINESS. The Company will, and
will cause each of the Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its
business except where the failure to do so could not reasonably be expected to
result in a Material Adverse Effect; PROVIDED that the foregoing shall not
prohibit any merger, consolidation, sale, transfer, lease, disposition,
liquidation or dissolution permitted under Section 6.04.
SECTION 5.04. PAYMENT OF TAX LIABILITIES. The Company will, and will
cause each of the Subsidiaries to, pay its Tax liabilities, that, if not paid,
could reasonably be expected to result in a Material Adverse Effect before the
same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings,
(b) the Company or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (c) the failure to
make payment pending such contest could not reasonably be expected to result
in a Material Adverse Effect.
SECTION 5.05. MAINTENANCE OF PROPERTIES; INSURANCE. The Company will,
and will cause each of the Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, except where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect and
(b) maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are customarily
maintained by companies engaged in the same or similar businesses operating
in the same or similar locations; PROVIDED that the Company and its
Subsidiaries may (i) self-insure against such risks and in amounts as are
usually self-insured by similar companies engaged in the same or similar
businesses operating in the same or similar locations and (ii) elect not to
carry terrorism insurance.
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SECTION 5.06. BOOKS AND RECORDS; INSPECTION RIGHTS. The Company will,
and will cause each of the Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Company will,
and will cause each of the Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts
from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 5.07. COMPLIANCE WITH LAWS. The Company will, and will cause
each of the Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.
SECTION 5.08. FURTHER ASSURANCES. The Company will, and will cause
each of the Subsidiaries to, execute any and all further documents, agreements
and instruments, and take all further action that may be required, or that the
Administrative Agent may reasonably request, (a) to effectuate the
transactions contemplated by the Loan Documents and (b) to cause the
Guarantee Requirement to be satisfied at all times.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full and all Letters of Credit have expired or terminated and all LC
Disbursements have been reimbursed by the Borrowers, the Company and each
Borrower covenants and agrees with the Lenders that:
SECTION 6.01. INDEBTEDNESS. The Company will not permit any Subsidiary
(other than a Loan Party that Guarantees all the Obligations) to, create,
incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in Schedule
6.01 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof or result
in an earlier maturity date or decreased remaining weighted average life
thereof;
(c) Indebtedness owed to the Company or to any Subsidiary that shall
not have been transferred or pledged to any third party;
(d) Indebtedness of the Company or any Subsidiary incurred to finance
the acquisition, construction or improvement of any fixed or capital
assets, including
63
Capital Lease Obligations and any Indebtedness incurred or assumed in
connection with the acquisition, construction or improvement of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
or result in an earlier maturity date or decreased remaining weighted
average life thereof or change the parties directly or indirectly
responsible for the payment thereof; PROVIDED that (i) such Indebtedness
is incurred prior to or within 180 days after such acquisition or the
completion of such construction or improvement and (ii) the aggregate
principal amount of Indebtedness permitted by this clause (d) shall not
exceed, in each case, the cost of such acquisition, construction or
improvement;
(e) Indebtedness of any Person that becomes a Subsidiary after the
date hereof; PROVIDED that (i) such Indebtedness exists at the time such
Person becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary and (ii) the aggregate
principal amount of Indebtedness permitted by this clause (e) shall not
exceed US$250,000,000 at any time outstanding;
(f) Indebtedness of the Company or any Subsidiary as an account party
in respect of trade letters of credit; and
(g) other Indebtedness that, when aggregated with the aggregate
outstanding Indebtedness of the Company secured by Liens and
Securitization Transactions permitted pursuant to Section 6.02(f) and the
aggregate sale price of the assets sold in sale and leaseback transactions
permitted pursuant to Section 6.03, shall at no time exceed the greater
of (i) US$75,000,000 and (ii) 15% of Consolidated Tangible Assets.
SECTION 6.02. LIENS. The Company will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect
of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Company or any
Subsidiary existing on the date hereof (or on any improvements or
accessions thereto or proceeds therefrom) and set forth on Schedule 6.02;
PROVIDED that (i) such Lien shall not apply to any other property or asset
of the Company or any Subsidiary and (ii) such Lien shall secure only
those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(c) any Lien existing on any property or asset prior to the acquisition
thereof by the Company or any Subsidiary or existing on any property or
asset of any Person that becomes a Subsidiary after the date hereof
prior to the time such
64
Person becomes a Subsidiary; PROVIDED that (i) such Lien is not created
in contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary , as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Company or any Subsidiary
and (iii) such Lien shall secure only those obligations which it secures
on the date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Company or any Subsidiary; PROVIDED that (i) such Liens
secure Indebtedness permitted by clause (d) of Section 6.01, (ii) such
Liens and the Indebtedness secured thereby are incurred prior to or within
180 days after such acquisition or the completion of such construction
or improvement, (iii) the Indebtedness secured thereby was incurred to
pay, and does not exceed, in each case, the cost of acquiring,
constructing or improving such fixed or capital assets and (iv) such
Liens shall not apply to any other property or assets of the Company or
any Subsidiary;
(e) other Liens arising in the ordinary course of business that do not
secure Indebtedness and do not interfere with the material operations of
the Company and the Subsidiaries and do not individually or in the
aggregate materially impair the value of the assets of the Company and
the Subsidiaries;
(f) other Liens securing Indebtedness and Securitization Transactions
that, when aggregated with the Indebtedness of Subsidiaries permitted
under Section 6.01(g) and the aggregate sale price of the assets sold in
sale and leaseback transactions permitted under Section 6.03, do not
exceed the greater of (i) US$75,000,000 and (ii) 15% of Consolidated
Tangible Assets at any time; and
(g) any extension, renewal or replacement (or successive renewals or
replacements) in whole or in part of any Lien referred to in the
foregoing clauses (other than clause (f)), provided that (i) the
obligations secured thereby shall be limited to the obligations secured
by the Lien so extended, renewed or replaced (and, to the extent
provided in the foregoing clauses, extensions, renewals and replacements
thereof) and (ii) such Lien shall be limited to all or a part of the
assets that secured the Lien so extended, renewed or replaced.
SECTION 6.03. SALE AND LEASEBACK TRANSACTIONS. The Company will not,
and will not permit any Subsidiary to, enter into any arrangement, directly or
indirectly, with any Person whereby it shall sell or transfer any property,
real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease property which it intends to
use for substantially the same purpose or purposes as the property being sold
or transferred; PROVIDED, HOWEVER, that, notwithstanding the above, the
Company or any Subsidiary may engage in any sale and leaseback transactions
if the aggregate sale price of the assets sold in such transactions, when
aggregated with the Indebtedness of Subsidiaries permitted under Section
6.01(g)
65
and the Indebtedness secured by Liens and Securitization Transactions
permitted pursuant to Section 6.02(e), does not exceed the greater of
(i) US$75,000,000 and (ii) 15% of Consolidated Tangible Assets at any time.
SECTION 6.04. FUNDAMENTAL CHANGES. (a) The Company will not, and will
not permit any Material Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) all or substantially all of its assets, or liquidate
or dissolve, except that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing (i) the
Company or any Material Subsidiary may merge or consolidate with any Person;
PROVIDED that (A) in the case of any merger or consolidation involving the
Company, either (x) the Company shall be the continuing or surviving
corporation or (y) the continuing or surviving corporation shall be organized
under the laws of the United States or any State thereof and shall assume all
the Company's obligations under this Agreement in a manner reasonably
acceptable to the Administrative Agent, (B) in the case of any merger or
consolidation involving a Material Subsidiary, the surviving entity shall be
a Subsidiary, and (C) in the case of any merger or consolidation involving a
Subsidiary that is a guarantor of the Obligations, the surviving entity shall
Guarantee the Obligations; PROVIDED FURTHER, however, that notwithstanding
the foregoing, no Material Subsidiary may merge or consolidate with the
Company and (ii) any Material Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to another Subsidiary (including by
liquidating or dissolving into such other Subsidiary); PROVIDED that any
transaction under this paragraph (a) involving a merger of or a disposition
of assets by a non-Wholly Owned Subsidiary shall not be permitted unless the
surviving Person or the acquiring Person is a Wholly Owned Subsidiary. In
the event of any merger or consolidation described in clause (i)(y), the
Company shall give the Lenders reasonable prior notice thereof in order to
allow the Lenders to comply with "know your customer" rules and other
applicable regulations.
(b) The Company will not engage in any business or activity, other
than the ownership of outstanding Equity Interests of the Subsidiaries and
activities incidental thereto and other activities and agreements typical of a
holding company that does not itself have any business or operations, and will
not own or acquire any assets, other than Equity Interests of the Subsidiaries,
cash and Permitted Investments and rights and agreements entered into in
accordance with the foregoing.
(c) The Company will not permit any of the Subsidiaries to engage to
any material extent in any business other than businesses conducted or proposed
as of the Effective Date as described in the Form S-4 and businesses similar,
ancillary, complementary or otherwise reasonably related thereto or that are
a reasonable extension, development or expansion thereof.
SECTION 6.05. RESTRICTED PAYMENTS. The Company will not, and will not
permit any of the Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except that (a) the Company
may declare and pay dividends with respect to its Equity Interests payable
solely in additional shares of its
66
common stock, (b) Subsidiaries may declare and pay dividends ratably with
respect to their Equity Interests, (c) the Company may make Restricted Payments
pursuant to and in accordance with stock option plans or other benefit plans for
management or employees of the Company and the Subsidiaries and (d) the Company
may declare, so long as no Default or Event of Default shall exist, and if
declared in accordance with this clause (d) may pay, cash dividends on its
common stock in an aggregate amount during any fiscal year not to exceed, when
taken together with all other dividends paid under this clause (d) during the
during the term of this Agreement, 50% of the Company's cumulative Consolidated
Net Income for each fiscal quarter of the Company for which financial statements
shall have been delivered under Section 5.01(a) or (b) commencing with the first
full fiscal quarter after the consummation of the Spin-Off; PROVIDED, however,
that so long as no Default or Event of Default shall exist or would be caused by
the payment thereof, the Company may pay cash dividends on its common stock
without limitation if the Leverage Ratio as of the last day of the most recently
completed fiscal quarter, giving pro forma effect to the payment of such cash
dividends and any related incurrence of Indebtedness as if they had occurred on
the last day of such quarter, shall have been equal to or less than 2.0 to 1.0.
SECTION 6.06. TRANSACTIONS WITH AFFILIATES. The Company will not, and
will not permit any of the Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of
its Affiliates, except (a) at prices and on terms and conditions not less
favorable to the Company or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, (b) transactions between or
among the Company, Wholly-Owned Subsidiaries and Subsidiary Loan Parties not
involving any other Affiliate, (c) any Restricted Payment permitted by Section
6.05, (d) transactions under the IAC Agreements as in effect on the date hereof
(or as hereafter amended in a manner not materially adverse to the Company or to
the rights or interests of the Lenders), (e) payments made and other
transactions entered into in the ordinary course of business with officers and
directors of the Company or any Subsidiary, and consulting fees and expenses
incurred in the ordinary course of business payable to former officers or
directors of the Company or any Subsidiary, (f) reclassifications or changes in
the terms of or other transactions relating to Equity Interests in the Company
held by Affiliates that do not involve the payment of any consideration (other
than Equity Interests of the Company) or any other transfer of value by the
Company or any Subsidiary to any such Affiliate, (g) any payments by the Company
or any Subsidiary to or on behalf of any Affiliate of the Company or any
Subsidiary in connection with out-of-pocket expenses incurred in connection with
any public or private offering, other issuance or sale of stock by the Company
or an Affiliate of the Company or other transaction for the benefit of the
Company or any Subsidiary and (h) transactions disclosed in the Form S-4;
PROVIDED, HOWEVER, that this Section shall not limit the operation or effect of,
or any payments under, (i) any license, lease, service contract, purchasing
agreement, disposition agreement or similar arrangement entered into in the
ordinary course of business between any Subsidiary and the Company or any other
Subsidiary or (ii) any agreement with respect to any joint venture to which the
Company or any Subsidiary is a party entered into in connection with, or
reasonably
67
related to, its lines of business, PROVIDED that such agreement is
approved by the Company's board of directors or the audit committee thereof.
SECTION 6.07. RESTRICTIVE AGREEMENTS. The Borrowing Subsidiaries will
not permit any of their Subsidiaries to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon the ability of such Subsidiaries to
pay dividends or other distributions with respect to any shares of their
capital stock or to make or repay loans or advances to the Borrowing
Subsidiaries or to Guarantee Indebtedness of the Borrowing Subsidiaries;
PROVIDED that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by this Agreement, (ii) the foregoing shall not
apply to restrictions and conditions existing on the date hereof and
identified on Schedule 6.07 (but shall apply to any extension or renewal of,
or any amendment or modification expanding the scope of, any such restriction
or condition), (iii) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of a Subsidiary
pending such sale, PROVIDED such restrictions and conditions apply only to
the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (v) the foregoing shall not apply to
customary provisions in leases and other contracts restricting the assignment
thereof and (vi) the foregoing shall not apply to restrictions and conditions
with respect to a Person that is not a Subsidiary on the date hereof, which
restrictions and conditions are in existence at the time such Person becomes
a Subsidiary and are not incurred in connection with, or in contemplation of,
such Person becoming a Subsidiary.
SECTION 6.08. ASSET DISPOSITIONS. The Company will not, and will not
permit any of the Subsidiaries to, sell, transfer, lease or otherwise dispose
of any asset, including any Equity Interest, owned by it, nor will the Company
permit any of the Subsidiaries to issue any additional Equity Interest in
such Subsidiary, except:
(a) sales of inventory, used or surplus equipment and other fixed
assets and Permitted Investments in the ordinary course of business;
(b) sales, transfers and dispositions (i) to a Subsidiary Loan Party
or (ii) by any Subsidiary that is not a Loan Party to any Subsidiary;
(c) issuances of Equity Interests in a Subsidiary (i) in the form of
restricted shares to members of management of such Subsidiary as
incentive compensation; (ii) to the Company or to a Wholly Owned
Subsidiary; or (iii) as a Restricted Payment under clause (b) of Section
6.05; and
(d) sales, transfers and dispositions of all the Equity Interests in a
Subsidiary owned by the Company and the Subsidiaries and sales,
transfers, leases and other dispositions of assets (other than accounts
receivable or inventory), in each case to the extent made to a Person
other than the Company or any Subsidiary and to the extent not permitted
by any other clause of this
68
Section 6.08; PROVIDED that (i) the aggregate book or fair market value of
all assets sold, transferred or otherwise disposed of in reliance upon
this clause (e) after the date hereof shall not at the time of any such
sale, transfer or other disposition exceed 20% of Consolidated Total
Assets as of the last day of the most recent fiscal quarter of the Company
for which financial statements have been delivered pursuant to Section
5.01(a) or (b) (or, prior to the delivery of any such financial
statements, as of March 31, 2005), (ii) the aggregate book or fair market
value of all assets sold, transferred or otherwise disposed of in reliance
upon this clause (e) during any fiscal year shall not at the time of any
such sale, transfer or other disposition exceed 10% of Consolidated Total
Assets as of the last day of the most recent fiscal quarter of the Company
for which financial statements have been delivered pursuant to Section
5.01(a) or (b) (or, prior to the delivery of any such financial
statements, as of March 31, 2005), (iii) no sale, transfer, lease or other
disposition shall be made pursuant to this clause (e) unless the Company
would be in pro forma compliance with the covenants set forth in Section
6.10 and 6.11 as of the last day of the most recent fiscal quarter for
which financial statements shall have been delivered pursuant to
Section 5.01(a) or (b) giving effect to such sale, transfer, lease or
other disposition as if effected on the first day of the
four-fiscal-quarter period ending as of such day and (iv) all sales,
transfers, leases and other dispositions permitted pursuant to this
clause (e) shall be made for fair value; and
(e) any other sales, transfers and dispositions for cash of all the
Equity Interests in a Subsidiary owned by the Company and the Subsidiaries
and sales, transfers, leases and other dispositions of assets (other than
accounts receivable or inventory), in each case to the extent made to a
Person other than the Company or any Subsidiary and to the extent not
permitted by any other clause of this Section 6.08; PROVIDED that the
Commitments shall be permanently reduced at the time, and by an amount
equal to the net cash proceeds, of each such sale, transfer, lease or
disposition.
SECTION 6.09. USE OF PROCEEDS AND LETTERS OF CREDIT. The Company will
not, and will not permit any of the Subsidiaries to, use the proceeds of the
Loans, or the Letters of Credit, for any purpose other than the general
corporate purposes of the Company and the Subsidiaries, including working
capital, capital expenditures and acquisitions. The Company will not, and will
not permit any of the Subsidiaries to, use any part of the proceeds of any Loan,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations T, U and X.
SECTION 6.10. LEVERAGE RATIO. The Company will not permit the Leverage
Ratio at the end of any fiscal quarter to exceed 3.00 to 1.00.
SECTION 6.11. CONSOLIDATED NET WORTH. The Company will not at any time
permit Consolidated Net Worth to be less than the sum at such time of (a)
US$5,250,000,000 and (b) 50% of the Company's Consolidated Net Income for each
fiscal quarter of the Company for which Consolidated Net Income is positive
and for
69
which financial statements shall have been delivered under Section 5.01(a)
or (b) commencing with the fiscal quarter during which the Spin-Off shall have
been consummated.
SECTION 6.12. MAINTENANCE OF BORROWING SUBSIDIARIES AS SUBSIDIARIES.
Permit any Borrowing Subsidiary to cease to be a Subsidiary; PROVIDED that this
Section shall not prohibit any merger of a Borrowing Subsidiary into a Wholly
Owned Subsidiary that is a Domestic Subsidiary and a Loan Party.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. EVENTS OF DEFAULT. If any of the following events
("EVENTS OF DEFAULT") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as
the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three days;
(c) any representation, warranty or statement made or deemed made by
or on behalf of the Company or any Subsidiary in or in connection with any
Loan Document or any amendment or modification thereof or waiver
thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with any Loan Document
or any amendment or modification thereof or waiver thereunder, shall
prove to have been incorrect in any material respect when made or deemed
made;
(d) the Company or any Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.03 (with
respect to the Company's existence) or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof
from the Administrative Agent to the Company (which notice will be given
at the request of any Lender);
(f) the Company or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable;
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(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material Indebtedness
to become due (or, in the case of a Securitization Transaction, to be
terminated), or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity; PROVIDED that this
clause (g) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Company or any Material Subsidiary or its debts,
or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Company
or any Material Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) the Company or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Company or any Material Subsidiary or for a substantial
part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors or (vi) take
any action for the purpose of effecting any of the foregoing;
(j) the Company or any Material Subsidiary shall become unable, admit
in writing its inability or fail generally to pay its debts as they become
due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of US$25,000,000 (to the extent not covered by insurance)
shall be rendered against the Company, any Material Subsidiary or any
combination thereof and the same shall remain undischarged for a period
of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to
attach or levy upon any assets of the Company or any Material Subsidiary
to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in a Material
Adverse Effect;
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(m) any Guarantee purported to be created under any Loan Document
shall cease to be, or shall be asserted by any Loan Party not to be, in
full force and effect (other than in accordance with its terms), except
upon the consummation of any transaction permitted by this Agreement as a
result of which the Subsidiary providing such Guarantee ceases to be a
Subsidiary; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the
Company or any Borrower described in clause (h) or (i) of this Article), and
at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall,
by notice to the Company, take either or both of the following actions, at
the same or different times: (i) terminate the Commitments, and thereupon
the Commitments and each LC Commitment shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Company and the Borrowers
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company and each Borrower; and in case of any event with
respect to the Company or a Borrower described in clause (h) or (i) of this
Article, the Commitments and the LC Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Company and the
Borrowers accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Company and the Borrowers.
SECTION 7.02. CAM EXCHANGE. (a) On the CAM Exchange Date, (i) the
Commitments shall automatically and without further act be terminated as
provided in Section 7.01 and (ii) the Lenders shall automatically and without
further act be deemed to have exchanged interests in the Designated
Obligations such that, in lieu of the interests of each Lender in the
particular Designated Obligations that it shall own as of such date and
prior to the CAM Exchange, such Lender shall own an interest equal to such
Lender's CAM Percentage in all the Designated Obligations. Each Lender, each
person acquiring a participation from any Lender as contemplated by
Section 9.04, the Company and each other Borrower hereby consents and agrees
to the CAM Exchange. Each of the Company, the other Borrowers and the
Lenders agrees from time to time to execute and deliver to the Administrative
Agent all such promissory notes and other instruments and documents as the
Administrative Agent shall reasonably request to evidence and confirm the
respective interests and obligations of the Lenders after giving effect to
the CAM Exchange, and each Lender agrees to surrender any promissory notes
originally received by it hereunder to the Administrative Agent against
delivery of any promissory notes so executed and delivered; PROVIDED that the
failure of the Company or any other Borrower to execute or deliver or of any
Lender to accept any such promissory note, instrument or document shall not
affect the validity or effectiveness of the CAM Exchange.
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(b) As a result of the CAM Exchange, on and after the CAM Exchange
Date, (i) each payment received by an Agent pursuant to any Loan Document in
respect of the Designated Obligations shall be distributed to the Lenders
pro rata in accordance with their respective CAM Percentages (to be redetermined
as of each such date of payment or distribution to the extent required by
paragraph (c) below) and (ii) Section 2.17(e) shall not apply with respect to
any Taxes required to be withheld or deducted by a Borrower from or in respect
of payments hereunder to any Lender or Administrative Agent that exceed the
Taxes such Borrower would have been required to withhold or deduct from or in
respect of payments to such Lender or Agent had such CAM Exchange not occurred.
(c) In the event that, on or after the CAM Exchange Date, the
aggregate amount of the Designated Obligations shall change as a result of the
making of an LC Disbursement by an Issuing Bank that is not reimbursed by a
Borrower, then (i) each US Tranche Lender (determined without giving effect to
the CAM Exchange), shall, in accordance with Section 2.05(d), promptly purchase
from such Issuing Bank a participation in such LC Disbursement in the amount of
such US Tranche Lender's US Tranche Percentage of such LC Disbursement (without
giving effect to the CAM Exchange), (ii) the Administrative Agent shall
redetermine the CAM Percentages after giving effect to such LC Disbursement and
the purchase of participations therein by the applicable Lenders, and (iii) in
the event distributions shall have been made in accordance with clause (i) of
paragraph (b) above, the Lenders shall make such payments to one another as
shall be necessary in order that the amounts received by them shall be equal to
the amounts they would have received had each LC Disbursement been outstanding
immediately prior to the CAM Exchange. Each such redetermination shall be
binding on each of the Borrowers and Lenders and their successors and assigns
and shall be conclusive absent manifest error.
ARTICLE VIII
THE AGENTS
Each of the Lenders and the Issuing Banks hereby irrevocably
appoints the Agents as its agents and authorizes the Agents to take such
actions on its behalf and to exercise such powers as are delegated to the
Agents by the terms of the Loan Documents, together with such actions and
powers as are reasonably incidental thereto.
Any Person serving as an Agents hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not an Agent, and such Person and its
Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with the Company or any Subsidiary or other Affiliate
thereof as if it were not an Agent hereunder.
The Agents shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality
of the foregoing, (a) the Agents shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Agents shall not have any duty to take
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any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Agents are required to exercise in writing as directed by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02), and (c) except as
expressly set forth in the Loan Documents, the Agents shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Company or any of the Subsidiaries that is communicated to or
obtained by them or any of their Affiliates in any capacity. The Agents shall
not be liable for any action taken or not taken by them with the consent or at
the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of their own gross negligence or wilful misconduct. Each
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to such Agent by the Company or a Lender, and
the Agents shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with
any Loan Document, (ii) the contents of any certificate, report or other
document delivered thereunder or in connection therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth in any Loan Document, (iv) the validity, enforceability, effectiveness
or genuineness of any Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article IV or
elsewhere in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may
rely upon any statement made to it orally or by telephone and believed by it
to be made by the proper Person, and shall not incur any liability for
relying thereon. Each Agent may consult with legal counsel (who may be
counsel for the Company), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by it.
Each Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and any such sub-agent,
and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as
activities Agent.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, each Agent may resign at any time by notifying
the Lenders, the Issuing Banks and the Company. Upon any such resignation,
the Required Lenders shall have the right, in consultation with the Company,
to appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation,
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then the retiring Agent may, on behalf of the Lenders and the Issuing Banks,
appoint a successor Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Company to a successor Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After an Agent's resignation hereunder,
the provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Agent.
Each Lender acknowledges that it has, independently and without
reliance upon either Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Lender also acknowledges
that it will, independently and without reliance upon either Agent or any
other Lender and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking
or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or
thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy,
as follows:
(i) if to the Company, to it at 3150 139th Avenue SE, Bellevue, WA
98005, Attention of Treasurer (Telecopy No. (425) 679-3163), and if to any
Borrower, to it in care of the Company;
(ii) if to the Administrative Agent or the Swingline Lender, to
JPMorgan Chase Bank, N.A., Loan and Agency Services Group, 1111 Fannin,
10th Floor, Houston, Texas 77002, Attention of Maryann Bui (Telecopy No.
(713) 750-2358), with a copy to JPMorgan Chase Bank, N.A., 270 Park
Avenue, New York, NY 10017, Attention of Shari Stern (Telecopy No. (212)
270-4164);
(iii) if to the London Agent, to JPMorgan Europe Limited, 125 London
Wall, London EC2Y 5AJ, Attention of Agency Department (Telecopy No.
44-207-777-2360), with a copy to the Administrative Agent as provided
under clause (ii) above;
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(iv) if to any Issuing Bank, to it at the address most recently
specified by it in a notice delivered to the Administrative Agent and the
Company; and
(v) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; PROVIDED that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. Each Agent or the Company
may, in its discretion, agree to accept notices and other communications to
it hereunder by electronic communications pursuant to procedures approved by
it; PROVIDED that approval of such procedures may be limited to particular
notices or communications.
(c) Each Borrowing Subsidiary hereby irrevocably appoints the Company
as its agent for the purpose of receiving or giving on its behalf any notice
and taking any other action provided for in this Agreement and hereby agrees
that it shall be bound by any such notice or action received, given or taken by
the Company hereunder or thereunder irrespective of whether or not any such
notice shall have in fact been authorized by such Borrowing Subsidiary and
irrespective of whether or not the agency provided for herein or therein shall
have theretofore been terminated.
(d) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by either
Agent, any Issuing Bank or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents, the Issuing Banks and
the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of any Loan Document or consent to any departure
by any Loan Party therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section, and then such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the
making of a Loan or issuance of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether either Agent, any Lender or
any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as set forth in paragraph (c) below, neither any Loan
Document (other than any Issuing Bank Agreement or any letter of credit
application referred to in
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Section 2.06(a) or (b)) nor any provision thereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into
by the Company and the Required Lenders or by the Company and the Administrative
Agent, or in the case of any other Loan Document, pursuant to an agreement or
agreements in writing entered into by the Administrative Agent and the Loan
Party or Loan Parties that are party thereto, in each case with the consent of
the Required Lenders; PROVIDED that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the maturity of any Loan
or the required date of reimbursement of any LC Disbursement, or any date for
the payment of interest or fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment (it being understood that the extension of the date set forth
in the last sentence of Section 4.01(c) shall not be viewed as a postponement of
the scheduled date of expiration of Commitments), or waive, amend or modify
Section 7.01(a), without the written consent of each Lender affected thereby,
(iv) extend the date set forth in the last sentence of Section 4.01(c) without
the written consent of Lenders having Revolving Credit Exposures and unused
Commitments representing more than 66-2/3% of the sum of the total Revolving
Credit Exposures and unused Commitments at such time, (v) change Section 2.18 in
a manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender, (vi) change any of the provisions of
this Section or the percentage set forth in the definition of "Required Lenders"
or any other provision of any Loan Document specifying the number or percentage
of Lenders (or Lenders of any Class) required to waive, amend or modify any
rights thereunder or make any determination or grant any consent thereunder,
without the written consent of each Lender, (vii) release the Company or any
Loan Party from its Guarantee under any Guarantee Agreement (except as expressly
provided in Section 9.14), or limit its liability in respect of such Guarantee,
without the written consent of each Lender or (viii) change any provision of any
Loan Document in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Loans of any Class differently from
those holding Loans of another Class, without the written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments
of the affected Class; PROVIDED FURTHER that no such agreement shall amend,
modify or otherwise affect the rights or duties of either Agent, any Issuing
Bank or the Swingline Lender hereunder without the prior written consent of such
Agent, such Issuing Bank or the Swingline Lender, as the case may be. Any
amendment, modification or waiver or modification of this Agreement that by its
terms affects the rights or duties under this Agreement of the Lenders under one
Tranche (but not the Lenders under the other Tranches) may be effected by an
agreement or agreements in writing entered into by the Company, the Borrowers
and the requisite percentage in interest of Lenders under the affected Tranche
that would be required to consent thereto under this Section if such Tranche of
Lenders were the only Tranche of Lenders hereunder at the time. Notwithstanding
the foregoing, any provision of this Agreement may be amended by an agreement in
writing entered into by the Company, the Administrative Agent (and, if their
rights or obligations are affected thereby, the Issuing Bank and the Swingline
Lender) and the Lenders that will remain
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parties hereto after giving effect to such amendment if (i) by the terms of
such agreement the Commitment of each Lender not consenting to the amendment
provided for therein shall terminate upon the effectiveness of such amendment,
(ii) at the time such amendment becomes effective, each Lender not consenting
thereto receives payment in full of the principal of and interest accrued on
each Loan made by it and all other amounts owing to it or accrued for its
account under this Agreement and (iii) after giving effect to such amendment and
all contemporaneous repayments of Loans and reductions of Commitments, the sum
of the total Revolving Credit Exposures under each Tranche shall not exceed the
total Commitments under such Tranche. Notwithstanding any other provision of any
Loan Document, no consent shall be required to be obtained in connection with
any waiver, amendment or other modification of any Loan Document from any Lender
that has no Commitment and whose Revolving Credit Exposure is zero. Any
amendment or modification effected in accordance with this paragraph will be
binding on each Borrowing Subsidiary whether or not such Borrowing Subsidiary
shall have consented thereto.
(c) Notwithstanding anything in paragraph (b) of this Section to the
contrary, this Agreement and the other Loan Documents may be amended at any
time and from time to time to add a currency or pricing option under any
Tranche or to establish one or more additional Tranches of revolving credit
commitments to be made available to one or more Borrowers by an agreement in
writing entered into by the Company, such Borrower or Borrowers, the
Administrative Agent and each person (including any Lender) that shall agree
to provide such currency, pricing option or commitment (but without the
consent of any other Lender), and each such person that shall not already be
a Lender shall, at the time such agreement becomes effective, become a Lender
with the same effect as if it had originally been a Lender under this
Agreement with the commitment set forth in such agreement; PROVIDED, that:
(i) the aggregate outstanding principal amount of the new commitments of all
such Tranches established pursuant to this paragraph shall, when taken
together with the net amount (if positive) of Commitment Increases over
Commitment Decreases under (and as defined in) Section 2.09(d), at no time,
without the consent of the Required Lenders, exceed US$250,000,000 and (ii)
the terms applicable to any additional revolving credit commitments of a
Tranche and the Loans and Letters of Credit thereunder shall be the same as
those applicable to the existing Commitments of such Tranche and the Loans
and Letters of Credit thereunder (after giving effect to any amendment in
connection with the establishment of such additional revolving credit
commitments). Any such agreement establishing a new Tranche shall amend the
provisions of this Agreement and the other Loan Documents to set forth the
terms of each Tranche established thereby (including the amount and final
maturity thereof (which shall not be earlier than the Maturity Date), the
interest to accrue and be payable thereon and any fees to be payable in
respect thereof) and to effect such other changes (including changes to the
provisions of this Section, Section 2.18 and the definition of "Required
Lenders") as the Company and the Administrative Agent shall deem necessary or
advisable in connection with the establishment of any such Tranche; PROVIDED,
that no such agreement shall: (i) effect any change described in any of
clauses (i), (ii), (iii) or (vi) of paragraph (b) of this Section without the
consent of each person required to consent to such change under such clause
(it being agreed, however, that any establishment of any Tranche of revolving
credit commitments will not, of itself, be
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deemed to effect any of the changes described in clauses (iv) through (vi)
of such paragraph (b) and that modifications to Section 2.18 or the definition
of "Required Lenders" or other provisions relating to voting provisions to
provide the Lenders under such Tranche with the benefit of such provisions will
not, by themselves, be deemed to effect any of the changes described in clauses
(iv) and (v) of such paragraph (b)) or (ii) amend Article V, VI or VII to
establish any affirmative or negative covenant, Event of Default or remedy that
by its terms benefits one or more Tranches, but not all Tranches, of Loans or
Borrowings, or provide for any guarantee or security that benefits one or more
Tranches, but not all Tranches, of Loans or Borrowings, without the prior
written consent of Lenders holding a majority in interest of the Loans and
Commitments of each Tranche not so benefited. The loans, commitments and
borrowings of any Tranche established pursuant to this paragraph shall
constitute Loans, Commitments and Borrowings under, and shall be entitled to all
the benefits afforded by, this Agreement and the other Loan Documents, and
shall, without limiting the foregoing, benefit equally and ratably from the
Guarantees created by the Guarantee Agreement. The Company and the Borrowers
shall take any actions reasonably required by the Administrative Agent to ensure
and/or demonstrate that the Guarantee Requirement continues to be satisfied
after the establishment of any such Tranche of new commitments.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The Company and
the Borrowers shall pay (i) all reasonable out-of-pocket expenses incurred by
the Agents, the Arrangers and their Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Agents, in connection with the
arrangement and the syndication of the credit facilities provided for herein,
the preparation, execution, delivery and administration of the Loan Documents
or any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by any
Issuing Bank in connection with the issuance, amendment, renewal or extension
of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Agents, any Issuing Bank or any
Lender, including the fees, charges and disbursements of any counsel for the
Agents, any Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with the Loan Documents, including its
rights under this Section, or in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses incurred
during any workout, restructuring or negotiations in respect of such Loans
or Letters of Credit.
(b) The Company and the Borrowers shall indemnify the Agents, the
Arrangers, each Issuing Bank and each Lender, and each Related Party of any of
the foregoing Persons (each such Person being called an "INDEMNITEE") against,
and hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of
(i) the arrangement and the syndication of the credit facilities provided for
herein, the preparation, execution, delivery and administration of the Loan
Documents or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder
or the consummation of the
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Transactions or any other transactions contemplated thereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal
by any Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Company or any of the Subsidiaries, or any
Environmental Liability related in any way to the Company or any of the
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto
and regardless of whether such matter is initiated by a third party or by the
Company or any Affiliate thereof; PROVIDED that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Company and the Borrowers fail to pay any
amount required to be paid by them to either Agent, any Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to such Agent, such Issuing Bank or the Swingline
Lender, as the case may be, such Lender's pro rata share (determined as of
the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; PROVIDED that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against such Agent, such Issuing Bank or
the Swingline Lender in its capacity as such. For purposes hereof, a
Lender's "pro rata share" shall be determined based upon its share of the sum
of the total Revolving Credit Exposures and unused Commitments at the time.
(d) To the extent permitted by applicable law, the Company and the
Borrowers shall not assert, and each hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of
Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later
than 10 days after written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), except that
(i) neither the Company nor the Borrowers may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent
of each Lender (and any attempted assignment or transfer by any of them
without such consent shall be null and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be
construed to
80
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of any Issuing
Bank that issues any Letter of Credit), Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Agents, the Issuing Banks and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld) of:
(A) the Company; PROVIDED that no consent of the Company shall be
required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default has occurred and is continuing,
any other assignee;
(B) the Administrative Agent; and
(C) each Issuing Bank.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent) shall not be
less than US$10,000,000 unless each of the Company and the
Administrative Agent otherwise consents; PROVIDED that no such consent
of the Company shall be required if an Event of Default has occurred and
is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of US$3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
For the purposes of this Section 9.04(b), the term "Approved Fund"
has the following meaning:
81
"APPROVED FUND" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that
is administered or managed by a Lender, an Affiliate of a Lender or an entity
or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall be
a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and
9.03). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this Section 9.04 shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an agent
of the Borrowers, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Commitment of, and
principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries
in the Register shall be conclusive, and the Company. the Borrowers, the
Administrative Agent, the Issuing Banks and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the
Company, the Borrowers, any Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in this Section
and any written consent to such assignment required by this Section, the
Administrative Agent shall accept such Assignment and Assumption and record
the information contained therein in the Register. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Company, the
Borrowers, the Administrative Agent, the Issuing Banks or the Swingline Lender,
sell participations to one or more banks or other entities (a "PARTICIPANT") in
all or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of
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its Commitment and the Loans owing to it); PROVIDED that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Company, the Borrowers, the Administrative Agent,
the Issuing Banks and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; PROVIDED that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Company and the Borrowers
agree that each Participant shall be entitled to the benefits of Sections 2.15,
2.16 and 2.17 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.18(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Company's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.17 unless the Company is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Company and
the Borrowers, to comply with Section 2.17(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; PROVIDED that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a
party hereto.
SECTION 9.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent, any
Issuing Bank or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other
amount payable under this Agreement is outstanding
83
and unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17,
2.18(b) and (c), 9.03, 9.08 and 9.10 and Article VIII shall survive and remain
in full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ISSUING BANKS.
This Agreement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. This
Agreement, the other Loan Documents and any separate letter agreements with
respect to fees payable to the Agents or the Issuing Banks constitute the
entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement. Each financial
institution that shall be party to an Issuing Bank Agreement executed by the
Company and the Administrative Agent shall be a party to and an Issuing Bank
under this Agreement, and shall have all the rights and duties of an Issuing
Bank hereunder and under its Issuing Bank Agreement. Each Lender hereby
authorizes the Administrative Agent to enter into Issuing Bank Agreements.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the
account of the Company or any Borrower against any of and all the obligations
of the Company and the Borrowers now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender
shall have made any demand under this Agreement and although such obligations
may be unmatured. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
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SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of the Company and the Borrowers hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New
York County and of the United States District Court of the Southern District
of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or any other Loan
Document, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in
such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement or any other Loan Document shall affect any
right that either Agent, any Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Company or any Borrower or the properties of any of them
in the courts of any jurisdiction.
(c) Each of the Company and the Borrowers hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this
Agreement or any other Loan Document in any court referred to in paragraph
(b) of this Section. Each of the parties hereto hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
(e) To the extent that any Borrowing Subsidiary has or hereafter may
acquire any immunity (sovereign or otherwise) from any legal action, suit or
proceeding, from jurisdiction of any court or from set-off or any legal
process (whether service or notice, attachment prior to judgment, attachment
in aid of execution of judgment, execution of judgment or otherwise) with
respect to itself or any of its property, such Borrowing Subsidiary hereby
irrevocably waives and agrees not to plead or claim such immunity in respect
of its Obligations under its Borrowing Subsidiary Agreement and this
Agreement.
(f) Each Borrowing Subsidiary hereby agrees that the waivers set forth
in this Section shall have the fullest extent permitted under the Foreign
Sovereign Immunities Act of 1976 of the United States of America and are
intended to be irrevocable and not subject to withdrawal for purposes of such
Act.
85
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Agents, the Issuing Banks
and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential),
(b) to the extent requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or similar
legal process, (d) to any other party to this Agreement, (e) in connection
with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to the Company or any Borrower and its obligations, (g) with the consent of
the Company or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to either Agent, any Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Company or any Borrower.
For the purposes of this Section, "INFORMATION" means all information
received from the Company and the Borrowers relating to the Company, the
Borrowers or their business, other than any such information that is
available to either Agent, any Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Company or a Borrower; PROVIDED that, in the
case of information received from the Company or a Borrower after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so
86
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "CHARGES"),
shall exceed the maximum lawful rate (the "MAXIMUM RATE") which may be
contracted for, charged, taken, received or reserved by the Lender holding
such Loan in accordance with applicable law, the rate of interest payable in
respect of such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan but
were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender.
SECTION 9.14. RELEASE OF GUARANTEES. In the event of a disposition of
all the Capital Stock in a Loan Party to a Person other than the Company or a
Subsidiary in a transaction not prohibited by any covenant contained in this
Agreement, the Administrative Agent is hereby directed and authorized to take
such action and to execute such documents as the Company may reasonably
request, at the Company's sole expense, to evidence or effect the release of
any Guarantee by such Loan Party under any Guarantee Agreement.
SECTION 9.15. CONVERSION OF CURRENCIES. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange
used shall be that at which in accordance with normal banking procedures in
the relevant jurisdiction the first currency could be purchased with such
other currency on the Business Day immediately preceding the day on which
final judgment is given.
(b) The obligations of the Company and each Borrower in respect of
any sum due to any party hereto or any holder of the obligations owing hereunder
(the "APPLICABLE CREDITOR") shall, notwithstanding any judgment in a currency
(the "JUDGMENT CURRENCY") other than the currency in which such sum is stated to
be due hereunder (the "AGREEMENT CURRENCY"), be discharged only to the extent
that, on the Business Day following receipt by the Applicable Creditor of any
sum adjudged to be so due in the Judgment Currency, the Applicable Creditor
may in accordance with normal banking procedures in the relevant jurisdiction
purchase the Agreement Currency with the Judgment Currency; if the amount of
the Agreement Currency so purchased is less than the sum originally due to
the Applicable Creditor in the Agreement Currency, the Company or such
Borrower, as applicable, agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify the Applicable Creditor against such loss.
The obligations of the Company and the Borrowers contained in this Section
9.15
87
shall survive the termination of this Agreement and the payment of all other
amounts owing hereunder.
SECTION 9.16. USA PATRIOT ACT NOTICE. Each Lender and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies each Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "ACT"),
it is required to obtain, verify and record information that identifies each
Borrower, which information includes the name and address of such Borrower
and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify such Borrower in accordance with the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
EXPEDIA, INC., a Delaware corporation,
by
-------------------------
Name:
Title:
EXPEDIA, INC., a Washington corporation,
by
-------------------------
Name:
Title:
TRAVELSCAPE, INC.,
by
-------------------------
Name:
Title:
HOTELS.COM,
by
-------------------------
Name:
Title:
HOTWIRE, INC.,
by
-------------------------
Name:
Title:
89
JPMORGAN CHASE BANK, N.A., individually and as
Administrative Agent,
by
-------------------------
Name:
Title:
J.P. MORGAN EUROPE LIMITED, individually and as
London Agent,
by
-------------------------
Name:
Title:
90
SIGNATURE PAGE TO
THE EXPEDIA, INC.
CREDIT AGREEMENT
LENDER: --------------------------,
by
---------------------------
Name:
Title: