CREDIT AGREEMENT

Exhibit 10.2

CREDIT AGREEMENT

among

GETTY IMAGES, INC.,

as Borrower,

The Several Lenders from Time to Time Parties Hereto,

and

U.S. BANK NATIONAL ASSOCIATION,

as Sole Lead Arranger and Administrative Agent

Dated as of March 19, 2007

 

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TABLE OF CONTENTS

 

 

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CREDIT AGREEMENT

This CREDIT AGREEMENT, dated as of March 19, 2007 (this “Agreement”), is among GETTY IMAGES, INC., a Delaware corporation (“Borrower”), the several banks and other financial institutions or entities from time to time parties to this Agreement (“Lenders”), and U.S. BANK NATIONAL ASSOCIATION, as Sole Lead Arranger, Administrative Agent, Issuing Lender and Swing Line Lender.

The parties agree as follows:

 

ARTICLE

I. DEFINITIONS

 

1.1

Defined Terms

As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.

“Additional Lender” has the meaning set forth in Section 2.8.

“Adjustment Date” has the meaning set forth in the Pricing Grid.

“Administrative Agent” means U.S. Bank National Association, together with its Affiliates, as Administrative Agent for Lenders under this Agreement and the other Loan Documents, together with its successors as provided for in this Agreement.

“Affiliate” means, as to any Person, any other Person that, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 15 percent or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.

“Aggregate Exposure” means, with respect to any Lender at any time, an amount equal to (a) until the Closing Date, the aggregate amount of such Lender’s Revolving Commitment at such time and (b) thereafter, the sum of the amount of such Lender’s Revolving Commitment then in effect or, if the Revolving Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then outstanding.

“Aggregate Exposure Percentage” means, with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time.

“Agreement” has the meaning set forth in the preamble hereto.

 

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“Applicable Margin” means 0.60   percent per annum; provided , that on and after the first Adjustment Date, the Applicable Margin will be determined pursuant to the Pricing Grid.

“Application” means an application, in such form as Issuing Lender may specify from time to time, requesting Issuing Lender to issue a Letter of Credit.

“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Assignee” has the meaning set forth in Section 12.6(b).

“Assignment and Assumption” means an Assignment and Assumption Agreement, substantially in the form of Exhibit A.

“Available Revolving Commitment” means, as to any Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over (b) such Lender’s Revolving Extensions of Credit then outstanding.

“Benefited Lender” has the meaning set forth in Section 12.7(a).

“Board” means the Board of Governors of the Federal Reserve System of the United States (or any successor).

“Borrower” has the meaning set forth in the preamble hereto.

“Borrowing Date” means any Business Day specified by Borrower as a date on which Borrower requests the relevant Lenders to make Loans hereunder.

“Business” has the meaning set forth in Section 9.16(b).

“Business Day” means any day other than a Saturday, Sunday or other day that commercial banks in Seattle, Washington or New York City are authorized or required by law to close; provided , however that when used in connection with LIBOR Rate Loans or Loan Periods, such term shall also exclude any day on which dealings in U.S. dollar deposits are not carried on in the London interbank market.

“Capital Lease Obligations” means, as to any Person, 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, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.

 

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“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.

“Cash Equivalents” means, as at any date of determination, (a) marketable securities (i) issued by, or unconditionally guaranteed by, the United States Government, (ii) issued by any agency thereof and backed by the full faith and credit of the United States, in the case of (i) and (ii) maturing within one year after such date, or (iii) issued by any government-sponsored enterprise; (b) certificates of deposit, time deposits, bankers’ acceptances, eurodollar time deposits or overnight bank deposits having maturities of 12 months or less from such date issued by any Lender or by any commercial bank organized under the laws of the United States or any state thereof or the District of Columbia having combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated at least A-1 by Standard & Poor’s Ratings Services (“S&P”) or P-1 by Moody’s Investors Service, Inc. (“Moody’s”), or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within 12 months from the date of acquisition; (d) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days, with respect to securities issued or fully guaranteed or insured by the United States government; (e) securities with maturities of one year or less from such date issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision, public instrumentality or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, public instrumentality or taxing authority or foreign government (as the case may be) are rated, at the time of acquisition thereof, at least A-1 by S&P or P-1 by Moody’s; (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition; (g) money market mutual or similar funds that invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition; (h) money market funds that (i) comply with the criteria set forth in Rule 2a-7 of the SEC under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000; or (i) corporate bonds, debentures or notes (including asset-backed securities) maturing no more than four years from the date of this Agreement and having, at the time of acquisition thereof, a rating of at least A from S&P or at least A3 from Moody’s.

“Closing Date” means the date on which the conditions precedent set forth in Section 6.1 shall have been satisfied, which date is March 19, 2007.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Commonly Controlled Entity” means an entity, whether or not incorporated, that is under common control with Borrower within the meaning of Section 4001 of ERISA or is part of a group that includes Borrower and that is treated as a single employer under Section 414 of the Code.

 

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“Compliance Certificate” means a certificate duly executed by a Responsible Officer substantially in the form of Exhibit B.

“Consolidated EBITDA” means Borrower’s net income, plus the sum of interest expense, income tax expense, depreciation expense, amortization expense and non-cash items, including equity-based compensation expense) or any non-recurring items, in each case, that were deducted in determining net income, all determined on a consolidated basis in accordance with GAAP.

“Consolidated Total Interest Bearing Indebtedness” means the aggregate amount of all interest bearing Indebtedness of Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP (including, without limitation, Capital Lease Obligations and subordinated debt).

“Continuing Directors” means the directors of Borrower on the Closing Date, and each other director, if, in each case, such other director’s nomination for election to the board of directors of Borrower is recommended by at least 66-  ² / 3  percent of the then Continuing Directors.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“Convertible Subordinated Note Indenture” means that certain Indenture dated as of December 16, 2004, entered into by Borrower.

“Convertible Subordinated Notes” means the subordinated notes of Borrower issued pursuant to the Convertible Subordinated Note Indenture.

“Daily Reset LIBOR Rate” means the one-month LIBOR rate quoted by U.S. Bank National Association from Telerate Page 3750 or any successor thereto, which shall be that one-month LIBOR rate in effect and reset each New York Banking Day, adjusted for any reserve requirement and any subsequent costs arising from a change in government regulation.

“Daily Reset LIBOR Rate Loan” has the meaning set forth in Section 2.4(a).

“Default” means any of the events specified in Article X, whether or not any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

“Disposition” means, with respect to any property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall have correlative meanings.

“Dollars” and “$” mean dollars in lawful currency of the United States.

 

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“Domestic Subsidiary” means any Subsidiary of Borrower organized under the laws of any jurisdiction within the United States.

“Environmental Laws” means any and all foreign, Federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental Authority or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health or the environment, as now or may at any time hereafter be in effect.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

“Event of Default” means any of the events specified in Article X, provided that any requirement for the giving of notice, the lapse of time, or both, has been satisfied.

“Excluded Foreign Subsidiary” means any Foreign Subsidiary in respect of which the guaranteeing by such Subsidiary of the Obligations could reasonably be expected to result in adverse tax consequences to Borrower.

“Fee Letter” means the letter agreement dated of even date with this Agreement, entered into between Borrower and Agent, together with any amendment, waiver, supplement or other modification to such letter agreement.

“Fee Payment Date” means (a) the first day of each calendar quarter and (b) the last day of the Revolving Commitment Period or any earlier date that the Revolving Commitments are terminated.

“Foreign Subsidiary” means any Subsidiary of Borrower that is not a Domestic Subsidiary.

“Funding Office” means the office of Administrative Agent specified in Section 12.2 or such other office as may be specified from time to time by Administrative Agent as its funding office by written notice to Borrower and Lenders.

“GAAP” means generally accepted accounting principles in the United States as in effect from time to time. In the event that any “Accounting Change” (as defined below) shall occur and such change results in a change in the method of calculation of financial covenants, standards or terms in this Agreement, then Borrower and Administrative Agent agree to enter into negotiations in order to amend such provisions of this Agreement so as to reflect equitably such Accounting Changes with the desired result that the criteria for evaluating Borrower’s financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made. Until such time as such an amendment shall have been executed and delivered by Borrower, Administrative Agent and Required Lenders, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred. “Accounting Changes” refers to changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board or the American Institute of Certified Public Accountants or, if applicable, the SEC.

 

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“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government, any securities exchange and any self-regulatory organization (including the National Association of Insurance Commissioners).

“Group Members” means the collective reference to Borrower and its respective Subsidiaries.

“Guarantee Agreement” means the Guarantee Agreement to be executed and delivered by Borrower and each Subsidiary Guarantor, substantially in the form of Exhibit C.

“Guarantee Obligation” means, as to any Person (the “guaranteeing person”), any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided , however , that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by Borrower in good faith.

“Guarantors” means the collective reference to the Subsidiary Guarantors and any other guarantor of the Obligations.

 

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“Indebtedness” means, of any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than current trade payables incurred in the ordinary course of such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit, surety bonds or similar arrangements, (g) the liquidation value of all mandatorily redeemable preferred Capital Stock of such Person, (h) all Guarantee Obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i) all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, and (j) for the purposes of Article X(e) only, all obligations of such Person in respect of Swap Agreements. 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 expressly provide that such Person is not liable therefor.

“Insolvency” means, with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.

“Insolvent” pertains to a condition of Insolvency.

“Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

“Interest Differential” means that sum equal to the greater of zero or the financial loss incurred by Lenders resulting from prepayment, calculated as the difference between the amount of interest Lenders would have earned (from like investments in the Money Markets as of the first day of the LIBOR Rate Loan) had prepayment not occurred and the interest Lenders will actually earn (from like investments in the Money Markets as of the date of prepayment) as a result of the redeployment of funds from the prepayment.

“Interest Rate Notice” means a notice in substantially the form of Exhibit D.

“Investments” has the meaning set forth in Section 8.8.

 

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“Issuing Lender” means U.S. Bank National Association.

“L/C Commitment” means $25,000,000.

“L/C Obligations” means, at any time, an amount equal to the sum of (a) the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit that have not then been reimbursed in accordance with Section 4.5.

“L/C Participants” means, with respect to any Letter of Credit, the collective reference to all Lenders other than Issuing Lender of such Letter of Credit.

“Lenders” has the meaning set forth in the preamble hereto.

“Letters of Credit” has the meaning set forth in Section 4.1(a).

“LIBOR Rate Loan” has the meaning set forth in Section 2.4(a).

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having substantially the same economic effect as any of the foregoing).

“Loan” means each Revolving Loan, Swing Line Loan and any other loan made by any Lender pursuant to this Agreement.

“Loan Documents” means this Agreement, the Guarantee Agreement, the Notes and any amendment, waiver, supplement or other modification to any of the foregoing.

“Loan Party” means each Group Member that is a party to a Loan Document.

“Loan Period” means the period commencing on the advance date of the applicable LIBOR Rate Loan and ending on the numerically corresponding day one, two, three or six months thereafter matching the interest rate term selected by Borrower; provided , however , (a) if any Loan Period would otherwise end on a day which is not a New York Banking Day, then the Loan Period shall end on the next succeeding New York Banking Day unless the next succeeding New York Banking Day falls in another calendar month, in which case the Loan Period shall end on the immediately preceding New York Banking Day; or (b) if any Loan Period begins on the last New York Banking Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of the Loan Period), then the Loan Period shall end on the last New York Banking Day of the calendar month at the end of such Loan Period.

“Material Adverse Effect” means a material adverse effect on (a) the business, property, operations, condition (financial or otherwise) or prospects of Borrower and its Subsidiaries taken as a whole or (b) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of Administrative Agent or Lenders hereunder or thereunder.

 

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“Materials of Environmental Concern” means any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or wastes, defined or regulated as such in or under any Environmental Law, including asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.

“Measurement Period” means, at any date of determination, the most recently completed four consecutive fiscal quarters of Borrower ending on or prior to such date.

“MediaVast” means MediaVast, Inc.

“MediaVast Purchase Agreement” means that certain merger agreement pursuant to which Borrower has agreed to purchase the stock of MediaVast.

“Money Markets” refers to one or more wholesale funding markets available to and selected by Administrative Agent, including negotiable certificates of deposit, commercial paper, eurodollar deposits, bank notes, federal funds, interest rate swaps or others.

“Multiemployer Plan” means a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

“New York Banking Day” means any day (other than a Saturday or Sunday) on which commercial banks are open for business in New York, New York.

“Non-Excluded Taxes” has the meaning set forth in Section 5.15(a).

“Non-U.S. Lender” has the meaning set forth in Section 5.15(a).

“Notes” means the collective reference to any promissory note evidencing any Loan, and includes each Revolving Note and Swing Line Note to the extent issued pursuant to the terms of this Agreement.

“Obligations” means the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of Borrower to Administrative Agent or to any Lender (or, in the case of Specified Swap Agreements, any Affiliate of any Lender), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Swap Agreement or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs,

 

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expenses (including all fees, charges and disbursements of counsel to Administrative Agent or to any Lender that are required to be paid by Borrower pursuant hereto) or otherwise.

“Other Taxes” means any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

“Participant” has the meaning set forth in Section 12.6(c).

“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor).

“Permitted Acquisition” means an acquisition of all or substantially all of the assets or of the assets constituting a line of business or substantially all of the Capital Stock of any Person where (a) no Event of Default shall have occurred and be continuing on the date such Permitted Acquisition is consummated, before or after giving effect thereto, (b) the business acquired (or Person acquired) is principally engaged in the same line of business (or a business reasonably incidental or complementary thereto) as Borrower, (c) Borrower shall have demonstrated to Administrative Agent compliance with the covenants set forth in Section 8.1 (i) on a pro forma basis (calculated for the relevant period set forth in Section 8.1 as of the date of such acquisition as if such acquisition had occurred on the first day of the relevant period), for the most recent full fiscal quarter immediately preceding such consummation date for which the relevant financial information has been delivered pursuant to Section 7.1 and (ii) on a projected basis, for each of the four fiscal quarters following the quarter referred to in the preceding clause (i), (d) Borrower shall have delivered to Administrative Agent for itself and for distribution to each Lender copies of the most recent audited financial statements (or if unavailable, the most recent unaudited financial statements) of the acquired Person together with such other information that Administrative Agent may reasonably request, (e) the fair market value of the consideration paid (including the amount of any Indebtedness or other obligations or liabilities assumed or acquired) in connection with such Permitted Acquisition together with that for other Permitted Acquisitions during the same fiscal year of Borrower, shall not be in excess of $75,000,000 (excluding the consideration paid for the MediaVast acquisition), and (f) a Responsible Officer of Borrower shall have delivered to Administrative Agent a Pro Forma Compliance Certificate. “Pro Forma Compliance Certificate” means a certificate to Administrative Agent certifying as to the accuracy of clauses (a) through (e) above and providing a detailed computation of compliance with clause (c) above.

“Permitted Subordinated Indebtedness” means any unsecured Indebtedness of Borrower evidenced by debt securities (which shall include, without limitation, convertible debt securities) issued in a transaction that (a) is expressly subordinated to the prior payment in full in cash of the Obligations on terms and conditions satisfactory to Administrative Agent and (b) has covenant, default and remedy provisions no more restrictive, or mandatory prepayment, repurchase or redemption provisions no more

 

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onerous or expansive in scope, taken as a whole, than those set forth in similar subordinated debt securities of Borrower in registered public offerings or in Rule 144A transactions at the time of such issuance.

“Person” means an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

“Plan” means, at a particular time, any employee benefit plan that is covered by ERISA and in respect of which Borrower or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

“Pricing Grid” means the table set forth below.

 

For the purposes of the Pricing Grid, changes in the Applicable Margin and the Unused Commitment Fee Rate resulting from changes in the Total Leverage Ratio shall become effective on the date (the “Adjustment Date”) that is three Business Days after the date on which financial statements are delivered to Lenders pursuant to Section 7.1 and shall remain in effect until the next change to be effected pursuant to this paragraph; provided that in the event that the financial statements for Borrower’s fourth fiscal quarter are not delivered until after the delivery of the financial statements for Borrower’s first fiscal quarter for the following fiscal year, the financial statements for Borrower’s first fiscal quarter for the following fiscal year shall govern the Pricing Grid until the financial statements for Borrower’s second fiscal quarter are delivered. If any financial statements referred to above are not delivered within the time periods specified in Section 7.1, then, until the date that is three Business Days after the date on which such financial statements are delivered, the highest rate set forth in each column of the Pricing Grid and the provisions of Section 5.5 shall apply. In addition, at all times while an Event of Default shall have occurred and be continuing, the highest rate set forth in each column of the Pricing Grid shall apply. Each determination of the Total Leverage Ratio pursuant to the Pricing Grid shall be made in a manner consistent with the determination thereof pursuant to Section 8.1.

“Pro Forma Consolidated EBITDA” means, for any Measurement Period, Consolidated EBITDA adjusted to give effect to any Permitted Acquisition consummated by Borrower or any of its Subsidiaries during such Measurement Period as if it had

 

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occurred on the first day of such Measurement Period if the fair market value of the consideration paid (including the amount of any Indebtedness or other obligations or liabilities assumed or acquired) in connection with such Permitted Acquisition was equal to or greater than $50,000,000. It is hereby agreed that the adjustment to Consolidated EBITDA with respect to the acquisition of MediaVast shall be (a) for the Measurement Period ending on the last day of the fiscal quarter of Borrower during which the acquisition of MediaVast is consummated, an increase of $0.00, (b) for the Measurement Period ending on the last day of the first full fiscal quarter of Borrower after the acquisition of MediaVast is consummated, an increase of $0.00, (c) for the Measurement Period ending on the last day of the second full fiscal quarter of Borrower after the acquisition of MediaVast is consummated, an increase of $0.00 and (d) for the Measurement Period ending on the last day of the third full fiscal quarter of Borrower after the acquisition of MediaVast is consummated, an increase of $0.00.

“Pro Forma Financial Statement” has the meaning set forth in Section 9.1(a).

“Projections” has the meaning set forth in Section 7.2(c).

“Properties” has the meaning set forth in Section 9.16(a).

“Register” has the meaning set forth in Section 12.6(b).

“Regulation U” means Regulation U of the Board as in effect from time to time.

“Reimbursement Obligation” means the obligation of Borrower to reimburse Issuing Lender pursuant to Section 4.5 for amounts drawn under Letters of Credit.

“Reorganization” means, with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA.

“Required Lenders” means, at any time, the holders of more than 50 percent of (a) until the Closing Date, the Revolving Commitments then in effect and (b) thereafter, the sum of the Total Revolving Commitments then in effect or, if the Revolving Commitments have been terminated, the Total Revolving Extensions of Credit then outstanding. For purposes of this definition, the aggregate principal amount of Swing Line Loans owing to the Swing Line Lender and of Letters of Credit issued by Issuing Lender shall be considered to be owed to Lenders ratably in accordance with their respective Revolving Commitments.

“Requirement of Law” means, as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

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“Responsible Officer” means the chief executive officer or chief financial officer of Borrower, but in any event, with respect to financial matters, the chief financial officer of Borrower.

“Restricted Payments” has the meaning set forth in Section 8.6.

“Revolving Commitment” means, as to any Lender, the obligation of such Lender, if any, to make Revolving Loans and participate in Letters of Credit and Swing Line Loans in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “Revolving Commitment” opposite such Lender’s name on Schedule 1.1 or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof. The initial amount of the Total Revolving Commitments is $200,000,000.

“Revolving Commitment Period” means the period from and including the Closing Date to the Revolving Termination Date.

“Revolving Extensions of Credit” means, as to any Lender at any time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender then outstanding and (b) such Lender’s Revolving Percentage of the L/C Obligations and Swing Line Loans then outstanding.

“Revolving Facility” means the Revolving Commitments and the extensions of credit made thereunder.

“Revolving Loans” has the meaning set forth in Section 2.1.

“Revolving Note” has the meaning set forth in Section 2.3 hereof and includes all renewals, replacements and amendments thereof.

“Revolving Percentage” means, as to any Lender at any time, the percentage which such Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments or, at any time after the Revolving Commitments shall have expired or terminated, the percentage which the aggregate principal amount of such Lender’s Revolving Loans then outstanding constitutes of the aggregate principal amount of the Revolving Loans then outstanding, provided , that, in the event that the Revolving Loans are paid in full prior to the reduction to zero of the Total Revolving Extensions of Credit, the Revolving Percentages shall be determined in a manner designed to ensure that the other outstanding Revolving Extensions of Credit shall be held by Lenders on a comparable basis.

“Revolving Termination Date” means the date that is 364 days after the Closing Date.

“SEC” means the Securities and Exchange Commission, any successor thereto and any analogous Governmental Authority.

 

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“Single Employer Plan” means any Plan that is covered by Title IV of ERISA, but that is not a Multiemployer Plan.

“Solvent” when used with respect to any Person, means that, as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.

“Specified Swap Agreement” means any Swap Agreement entered into by Borrower and any Lender or Affiliate thereof in respect of interest rates or currency exchange rates.

“Subsidiary” means as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of Borrower.

“Subsidiary Guarantor” means each Subsidiary of Borrower other than any Excluded Foreign Subsidiary.

“Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option, interest rate cap or collar, 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 Borrower or any of its Subsidiaries shall be a “Swap Agreement”.

 

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“Swing Line Commitment” means $25,000,000.

“Swing Line Facility” has the meaning set forth in Section 3.1.

“Swing Line Lender” means U.S. Bank National Association.

“Swing Line Loans” has the meaning set forth in Section 3.1.

“Swing Line Note” has the meaning set forth in Section 3.3 hereof and includes all renewals, replacements and amendments thereof.

“Total Leverage Ratio” means the ratio of (a) Consolidated Total Interest Bearing Indebtedness on the date of determination to (b) Pro Forma Consolidated EBITDA for the four consecutive fiscal quarters of Borrower then ended.

“Total Revolving Commitments” means, at any time, the aggregate amount of the Revolving Commitments then in effect.

“Total Revolving Extensions of Credit” means, at any time, the aggregate amount of the Revolving Extensions of Credit of Lenders outstanding at such time.

“Transferee” means any Assignee or Participant.

“Type” means, as to any Revolving Loan, its nature as a Daily Reset LIBOR Rate Loan or a LIBOR Rate Loan, as applicable.

“United States” means the United States of America.

“Unused Commitment Fee Rate” means 0.125 percent per annum; provided , that on and after the first Adjustment Date, the Unused Commitment Fee Rate will be determined pursuant to the Pricing Grid.

“Wholly Owned Subsidiary” means, as to any Person, any other Person all of the Capital Stock of which (other than directors’ qualifying shares required by law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.

“Wholly Owned Subsidiary Guarantor” means any Subsidiary Guarantor that is a Wholly Owned Subsidiary of Borrower.

 

1.2

Other Definitional Provisions; Rules of Construction

(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.

(b) As used herein and in the other Loan Documents, and any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the respective meanings given

 

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to them under GAAP, (ii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (iii) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (iv) 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, Capital Stock, securities, revenues, accounts, leasehold interests and contract rights, and (v) references to agreements or other Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time.

(c) The words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise specified.

(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

(e) Provisions of the Loan Documents apply to successive events and transactions.

(f) In the event of any inconsistency between the provisions of this Agreement and the provisions of any of the other Loan Documents, the provisions of this Agreement govern.

 

1.3

Incorporation of Exhibits

All references to “Exhibits” contained herein are references to exhibits attached hereto, the terms and conditions of which are made a part hereof for all purposes.

 

ARTICLE II.

REVOLVING COMMITMENT

 

2.1

Revolving Commitments

Subject to the terms and conditions hereof, each Lender severally agrees to make revolving credit loans (“Revolving Loans”) to Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the L/C Obligations and Swing Line Loans then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period Borrower may use the Revolving Commitments by borrowing, repaying or prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof.

 

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2.2

Use of Proceeds

The proceeds of the Revolving Loans shall be used by Borrower for general business purposes, which includes (without limitation) financing Permitted Acquisitions, the redemption or repayment of all or a portion of the Convertible Subordinated Notes and financing Borrower’s Subsidiaries.

 

2.3

Revolving Notes

Borrower agrees that upon notice by any Lender to Borrower (with a copy of such notice to Administrative Agent) to the effect that a promissory note or other evidence of Indebtedness is required or appropriate in order for such Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Revolving Loans owing to, or to be made by, such Lender, Borrower shall promptly execute and deliver to such Lender, with a copy to Administrative Agent, a Revolving Note in substantially the form of Exhibit E hereto, payable to the order of such Lender in a principal amount equal to the Revolving Commitment of such Lender (each promissory note issued hereunder, as amended, endorsed or replaced, shall be a “Revolving Note,” and collectively, the “Revolving Notes”).

 

2.4

Interest Rate

(a) Interest on the Revolving Loans shall accrue at one of the following per annum rates selected by Borrower (i)   upon notice to Administrative Agent (or in the event no other interest rate is selected), the Applicable Margin plus the Daily Reset LIBOR Rate (a “Daily Reset LIBOR Rate Loan”); or (ii)   upon a minimum of three New York Banking Days prior notice, the Applicable Margin plus the one, two, three or six-month LIBOR rate quoted by U.S. Bank National Association from Telerate Page 3750 or any successor thereto (which shall be the LIBOR rate in effect two New York Banking Days prior to commencement of the advance), adjusted for any reserve requirement and any subsequent costs arising from a change in government regulation (a “LIBOR Rate Loan”). In the event Borrower does not timely select another interest rate option at least three New York Banking Days before the end of the Loan Period for a LIBOR Rate Loan, Administrative Agent may at any time after the end of the Loan Period convert the LIBOR Rate Loan to a Daily Reset LIBOR Rate Loan, but until such conversion, the funds advanced under the LIBOR Rate Loan shall continue to accrue interest at the same rate as the interest rate in effect for such LIBOR Rate Loan prior to the end of the Loan Period. No LIBOR Rate Loan may extend beyond the Revolving Termination Date. In any event, if the Loan Period for a LIBOR Rate Loan should happen to extend beyond the Revolving Termination Date, such loan must be prepaid on the Revolving Termination Date. Administrative Agent’s internal records of applicable interest rates shall be determinative in the absence of manifest error. The aggregate number of LIBOR Rate Loans in effect at any one time may not exceed six. If a LIBOR Rate Loan is prepaid prior to the end of the Loan Period for such loan, whether voluntarily or because prepayment is required on the Revolving Termination Date or due to acceleration of the Revolving Loans upon an Event of Default or otherwise, Borrower agrees to pay all of Lenders’ costs, expenses and Interest Differential (as determined by Administrative

 

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Agent) incurred as a result of such prepayment. Because of the short-term nature of this facility, Borrower agrees that the Interest Differential shall not be discounted to its present value. Any prepayment of a LIBOR Rate Loan shall be in an amount equal to the remaining entire principal balance of such loan.

(b) Notices required by Section 2.4(a) shall be in the form of an Interest Rate Notice and must be received by Administrative Agent prior to 10:00 a.m. Seattle time on the relevant Business Day.

 

2.5

Repayment

(a) Interest on each Daily Reset LIBOR Rate Loan under the Revolving Facility is payable to Administrative Agent for the ratable benefit of each Lender beginning April 1, 2007, and on the same date of each month thereafter, plus a final interest payment with the final payment of principal.

(b) Interest on each LIBOR Rate Loan under the Revolving Facility is payable to Administrative Agent for the ratable benefit of each Lender on the last day of each Loan Period, plus a final interest payment with the final payment of principal, provided that for each Loan Period in excess of three months, interest will be payable every three months from the first day such Loan Period.

(c) Principal of the Revolving Loans is payable to Administrative Agent for the ratable benefit of each Lender on the Revolving Termination Date.

 

2.6

Procedure for Revolving Loan Borrowing

Borrower may borrow under the Revolving Commitments during the Revolving Commitment Period on any Business Day, provided that Borrower shall give Administrative Agent irrevocable written notice (including notices by facsimile and email), which notice must be received by Administrative Agent prior to 10:00 a.m., Seattle time, (a) three Business Days prior to the requested Borrowing Date, in the case of LIBOR Rate Loans, or (b) on the same Business Day of the requested Borrowing Date, in the case of Daily Reset LIBOR Rate Loans), specifying (i) the amount and Type of Revolving Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of LIBOR Rate Loans, the respective amounts of each such Type of Loan and the respective lengths of the initial Loan Period. No Revolving Loans shall be made on the Closing Date; provided that any letters of credit which Borrower has outstanding prior to the Closing Date may be replaced by Letters of Credit issued hereunder. Each borrowing under the Revolving Commitments shall be in a minimum principal amount of $5,000,000 and in integral multiples of $1,000,000 thereafter (or, if the then aggregate Available Revolving Commitments are less than $5,000,000, such lesser amount). Upon receipt of any such notice from Borrower, Administrative Agent shall promptly notify each Lender thereof. Each Lender will make the amount of its pro rata share of each borrowing available to Administrative Agent for the account of Borrower at the Funding Office prior to 12:00 Noon, Seattle time, on the Borrowing Date requested by Borrower in funds immediately available to Administrative Agent. Such borrowing will then be made available to Borrower by Administrative Agent crediting the account of Borrower on the books of such office with the aggregate of the amounts made available to Administrative Agent by Lenders and in like funds as received by Administrative Agent.

 

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2.7

Commitment Fees, etc.

(a) Borrower agrees to pay to Administrative Agent for the account of each Lender an unused commitment fee for the period from and including the Closing Date hereof to the last day of the Revolving Commitment Period, computed at the Unused Commitment Fee Rate on the average daily amount of the Available Revolving Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on each Fee Payment Date, commencing on the first such date to occur after the date hereof. For purposes of calculating the unused commitment fee, the aggregate principal amount of Swing Line Loans owing to the Swing Line Lender shall not be considered to be a Revolving Extensions of Credit. The unused commitment fee shall be calculated on a 360-day year for the actual number of days elapsed.

(b) Borrower agrees to pay to Administrative Agent the fees in the amounts and on the dates as set forth in any fee agreements with Administrative Agent (including, without limitation, the Fee Letter) and to perform any other obligations contained therein.

 

2.8

Optional Increase in Revolving Commitment Amount

Borrower may, up to two times, by means of a letter delivered to Administrative Agent substantially in the form of Exhibit F, request that the Total Revolving Commitments be increased in an installment of no less than $50,000,000, by an aggregate amount not to exceed $150,000,000, by (a) increasing the Revolving Commitment of one or more Lenders that have agreed to such increase and/or (b) adding one or more commercial banks or other Persons as a party hereto (each an “Additional Lender”) with a Revolving Commitment in an amount agreed to by any such Additional Lender; provided that no Additional Lender shall be added as a party hereto if a Default or an Event of Default exists and without (x) the written consent of Administrative Agent (which shall not be unreasonably withheld) and (y) the payment to Administrative Agent of an administrative fee by Borrower in the amount of $5,000 for each Additional Lender. Any increase in the Total Revolving Commitments pursuant to this Section 2.8 shall be effective three Business Days after the date on which Administrative Agent has received and accepted the applicable increase letter in the form of Annex 1 to Exhibit F (in the case of an increase in the Revolving Commitments of an existing Lender) or assumption letter in the form of Annex 2 to Exhibit F (in the case of the addition of an Additional Lender). Administrative Agent shall promptly notify Borrower and Lenders of any increase in the Total Revolving Commitments pursuant to this Section 2.8 and of the Proportionate Share of each Lender in the Total Revolving Commitments after giving effect thereto.

 

2.9

Optional Decrease in Revolving Commitment Amount

Borrower may by written notice delivered to Administrative Agent, permanently decrease the Total Revolving Commitments by an aggregate amount not to exceed $100,000,000, by decreasing the Revolving Commitment of each of the Lenders on a pro

 

PAGE 24

rata basis. Any decrease in the Total Revolving Commitments pursuant to this Section 2.9 shall (a) be in an aggregate amount of at least $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (b) be effective three Business Days after the date on which Administrative Agent has received Borrower’s written notice. Administrative Agent shall promptly notify Borrower and Lenders of any decrease in the Total Revolving Commitments pursuant to this Section 2.9 and of the Proportionate Share of each Lender in the Total Revolving Commitments after giving effect thereto.

 

ARTICLE

III. SWING LINE LOAN

 

3.1

Swing Line Commitment

Subject to the terms and conditions hereof, Swing Line Lender agrees to make loans (“Swing Line Loans”) to Borrower from time to time on any Business Day during the Revolving Commitment Period (i) in an aggregate amount not to exceed at any time outstanding the Swing Line Commitment (the “Swing Line Facility”) and (ii) in an amount for each such Swing Line Loan not to exceed the aggregate of the Available Revolving Commitments at such time. No Swing Line Loan shall be used for the purpose of funding the payment of principal of any other Swing Line Loan. Within the limits of the Swing Line Facility, Borrower may borrow under this Section 3.1, repay pursuant to Section 3.5 and reborrow under this Section 3.1.

 

3.2

Use of Proceeds

The proceeds of the Swing Line Loans shall be used by Borrower for general business purposes.

 

3.3

Swing Line Note

Borrower agrees that upon notice by Swing Line Lender to Borrower (with a copy of such notice to Administrative Agent) to the effect that a promissory note or other evidence of indebtedness is required or appropriate in order for Swing Line Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Swing Line Loans owing to, or to be made by, Swing Line Lender, Borrower shall promptly execute and deliver to Swing Line Lender, with a copy to Administrative Agent, a Swing Line Note in substantially the form of Exhibit G hereto, payable to the order of Swing Line Lender in a principal amount equal to the Swing Line Commitment (“Swing Line Note”).

 

3.4

Interest Rate

The unpaid principal balance of each Swing Line Loan will bear interest at an annual rate equal to the Applicable Margin plus the Daily Reset LIBOR Rate, as and when such rate changes.

 

PAGE 25

3.5

Repayment of Swing Line Loans

(a) Interest on the Swing Line Loans is payable to Swing Line Lender beginning April 1, 2007, and on the same date of each consecutive month thereafter, plus a final interest payment with the final payment of principal.

(b) All principal of the Swing Line Loans is payable to Swing Line Lender in full the Revolving Termination Date, Borrower may from time to time prepay Swing Line Loans in whole or in part.

 

3.6

Procedure for Swing Line Loans

Borrower may request Swing Line Loans during the Revolving Commitment Period on any Business Day, provided that Borrower shall give Administrative Agent irrevocable notice (which notice must be received by Administrative Agent prior to 12:00 Noon, Seattle time, on the requested Borrowing Date). Each such notice of a Swing Line Loan shall be by telephone, confirmed immediately in writing, or email or telex or facsimile, specifying therein the requested (i) Borrowing Date and (ii) amount of such Swing Line Loan. Upon receipt of any such notice from Borrower, Administrative Agent shall promptly notify the Swing Line Lender thereof. The Swing Line Lender will make the amount of the Swing Line Loans available to Administrative Agent in same day funds. After Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article VI, Administrative Agent will make such funds available to Borrower by crediting the account of Borrower. Notwithstanding the foregoing, no notice from Borrower is required for advances made pursuant to any loan sweep in place between Swing Line Lender and Borrower.

 

3.7

Swing Line Participations

Upon written demand by the Swing Line Lender, with a copy of such demand to Administrative Agent, or in any event automatically upon the maturity of each Swing Line Loan, each other Lender shall purchase from the Swing Line Lender, and the Swing Line Lender shall sell and assign to each such other Lender, such other Lender’s Revolving Percentage of such outstanding Swing Line Loan as of the date of such demand, by deposit to Administrative Agent’s account, in same day funds, an amount equal to the portion of the outstanding principal amount of such Swing Line Loan to be purchased by such Lender. Borrower hereby agrees to each such sale and assignment. Each Lender agrees to purchase its Revolving Percentage of an outstanding Swing Line Loan on (i) the Business Day on which demand therefor is made by the Swing Line Lender, or in any event automatically upon the maturity of each Swing Line Loan, provided that notice of such demand is given not later than 12:00 Noon (Seattle time) on such Business Day or (ii) the first Business Day next succeeding such demand if notice of such demand is given after such time. Upon any such assignment by the Swing Line Lender to any other Lender of a portion of a Swing Line Loan, the Swing Line Lender represents and warrants to such other Lender that the Swing Line Lender is the legal and beneficial owner of such interest being assigned by it, but makes no other representation or warranty and assumes no responsibility or recourse with respect to such Swing Line

 

PAGE 26

Loan, the Loan Documents or any Loan Party. If and to the extent that any Lender shall not have so made the amount of such Swing Line Loan available to Administrative Agent, such Lender agrees to pay to Administrative Agent forthwith on demand such amount together with interest thereon, for each day from the date of demand by the Swing Line Lender until the date such amount is paid to Administrative Agent, at the Daily Reset LIBOR Rate. If such Lender shall pay to Administrative Agent such amount for the account of the Swing Line Lender on any Business Day, such amount so paid in respect of principal shall constitute a Swing Line Loan made by such Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of the Swing Line Loan made by the Swing Line Lender shall be reduced by such amount on such Business Day.

 

ARTICLE IV.

LETTERS OF CREDIT

 

4.1

L/C Commitment

(a) Subject to the terms and conditions hereof, Issuing Lender, in reliance on the agreements of the other Lenders set forth in Section 4.4(a), agrees to issue standby and commercial letters of credit (“Letters of Credit”) for the account of Borrower on any Business Day during the Revolving Commitment Period in such form as may be approved from time to time by Issuing Lender; provided that Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the Available Revolving Commitments would be less than zero. Each Letter of Credit shall expire no later than one year after the Revolving Termination Date.

(b) Issuing Lender shall not at any time be obligated to issue any Letter of Credit if such issuance would conflict with, or cause Issuing Lender or any L/C Participant to exceed any limits imposed by, any applicable Requirement of Law.

(c) In the event that any Letters of Credit have an expiration date after the Revolving Termination Date, at least five Business Days prior to the Revolving Termination Date, Borrower shall deposit with Administrative Agent cash collateral in an amount equal to the maximum amount available under such Letters of Credit and shall execute and deliver to Administrative Agent such documentation deemed necessary by Administrative Agent to perfect Administrative Agent’s security interest in such cash.

 

4.2

Procedure for Issuance of Letter of Credit

Borrower may from time to time request that Issuing Lender issue a Letter of Credit by delivering to Issuing Lender at its address for notices specified herein an Application therefor, completed to the satisfaction of Issuing Lender, and such other certificates, documents and other papers and information as Issuing Lender may reasonably request. Upon receipt of any Application, Issuing Lender will process such Application and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue the Letter of Credit requested thereby (but in no event shall Issuing Lender be required to issue any Letter of Credit earlier than three Business Days after its

 

PAGE 27

receipt of the Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to by Issuing Lender and Borrower. Issuing Lender shall furnish a copy of such Letter of Credit to Borrower promptly following the issuance thereof. Issuing Lender shall promptly furnish to Administrative Agent, which shall in turn promptly furnish to Lenders, notice of the issuance of each Letter of Credit (including the amount thereof).

 

4.3

Fees and Other Charges

(a) Borrower will pay a fee for each standby Letter of Credit at a per annum rate equal to the Applicable Margin then in effect with respect to LIBOR Rate Loans, shared ratably among Lenders and payable quarterly in arrears on each Fee Payment Date after the issuance date. In addition, Borrower shall pay to Issuing Lender for its own account a fronting fee in a per annum amount rate equal to 0.125 percent on the undrawn and unexpired amount of each standby Letter of Credit issued by Issuing Lender, payable quarterly in arrears on each Fee Payment Date after the issuance date.

(b) Borrower will pay a one-time, nonrefundable fee for each commercial Letter of Credit (to be shared ratably among Lenders), as well as customary issuance and documentation review costs, in amounts to be agreed upon by Borrower and Issuing Lender at the time of issuance.

(c) In addition to the foregoing fees, Borrower shall pay or reimburse Issuing Lender for such normal and customary costs and expenses as are incurred or charged by Issuing Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any Letter of Credit.

 

4.4

L/C Participations

(a) Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce Issuing Lender to issue Letters of Credit, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from Issuing Lender, on the terms and conditions set forth below, for such L/C Participant’s own account and risk an undivided interest equal to such L/C Participant’s Revolving Percentage in Issuing Lender’s obligations and rights under and in respect of each Letter of Credit and the amount of each draft paid by Issuing Lender thereunder. Each L/C Participant agrees with Issuing Lender that, if a draft is paid under any Letter of Credit for which Issuing Lender is not reimbursed in full by Borrower in accordance with the terms of this Agreement, such L/C Participant shall pay to Issuing Lender upon demand at Issuing Lender’s address for notices specified herein an amount equal to such L/C Participant’s Revolving Percentage of the amount of such draft, or any part thereof, that is not so reimbursed. Each L/C Participant’s obligation to pay such amount shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that such L/C Participant may have against Issuing Lender, Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default or the

 

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failure to satisfy any of the other conditions specified in Article VI, (iii) any adverse change in the condition (financial or otherwise) of Borrower, (iv) any breach of this Agreement or any other Loan Document by Borrower, any other Loan Party or any other L/C Participant or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

(b) If any amount required to be paid by any L/C Participant to Issuing Lender pursuant to Section 4.4(a) in respect of any unreimbursed portion of any payment made by Issuing Lender under any Letter of Credit is paid to Issuing Lender within three Business Days after the date such payment is due, such L/C Participant shall pay to Issuing Lender on demand an amount equal to the product of (i) such amount, times (ii) the daily average Daily Reset LIBOR Rate during the period from and including the date such payment is required to the date on which such payment is immediately available to Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any L/C Participant pursuant to Section 4.4(a) is not made available to Issuing Lender by such L/C Participant within three Business Days after the date such payment is due, Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon calculated from such due date at the rate per annum applicable to Daily Reset LIBOR Rate Loans under the Revolving Facility. A certificate of Issuing Lender submitted to any L/C Participant with respect to any amounts owing under this Section shall be conclusive in the absence of manifest error.

(c) Whenever, at any time after Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its pro rata share of such payment in accordance with Section 4.4(a), Issuing Lender receives any payment related to such Letter of Credit (whether directly from Borrower or otherwise, including proceeds of collateral applied thereto by Issuing Lender), or any payment of interest on account thereof, Issuing Lender will distribute to such L/C Participant its pro rata share thereof; provided , however , that in the event that any such payment received by Issuing Lender shall be required to be returned by Issuing Lender, such L/C Participant shall return to Issuing Lender the portion thereof previously distributed by Issuing Lender to it.

 

4.5

Reimbursement Obligation of Borrower

If any draft is paid under any Letter of Credit, Borrower shall reimburse Issuing Lender for the amount of (a) the draft so paid and (b) any taxes, fees, charges or other costs or expenses incurred by Issuing Lender in connection with such payment, not later than 12:00 Noon, Seattle time, on (i) the Business Day that Borrower receives notice of such draft, if such notice is received on such day prior to 10:00 a.m., Seattle time, or (ii) if clause (i) above does not apply, the Business Day immediately following the day that Borrower receives such notice. Each such payment shall be made to Issuing Lender at its address for notices referred to herein in Dollars and in immediately available funds. Interest shall be payable on any such amounts from the date on which the relevant draft is paid until payment in full at the Daily Reset LIBOR Rate plus the Applicable Margin, unless the default rate set forth in Section 5.5 is applicable.

 

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4.6

Obligations Absolute

Borrower’s obligations under this Article IV shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment that Borrower may have or have had against Issuing Lender, any beneficiary of a Letter of Credit or any other Person. Borrower also agrees with Issuing Lender that Issuing Lender shall not be responsible for, and Borrower’s Reimbursement Obligations under Section 4.5 shall not be affected by, among other things, the validity or genuineness of documents or of any endorsements thereon, even though such documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or any claims whatsoever of Borrower against any beneficiary of such Letter of Credit or any such transferee. Issuing Lender shall not be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors or omissions found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of Issuing Lender. Borrower agrees that any action taken or omitted by Issuing Lender under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct, shall be binding on Borrower and shall not result in any liability of Issuing Lender to Borrower.

 

4.7

Letter of Credit Payments

If any draft shall be presented for payment under any Letter of Credit, Issuing Lender shall promptly notify Borrower of the date and amount thereof. The responsibility of Issuing Lender to Borrower in connection with any draft presented for payment under any Letter of Credit shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are substantially in conformity with such Letter of Credit.

 

4.8

Applications

To the extent that any provision of any Application related to any Letter of Credit is inconsistent with the provisions of this Article IV, the provisions of this Article IV shall apply.

 

ARTICLE V.

GENERAL PROVISIONS RELATING TO LOANS

 

5.1

Manner of Payment

All payments (including prepayments) to be made by Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 12:00 Noon, Seattle time, on the due date thereof to Administrative Agent, for the account of Lenders, at the Funding Office, in Dollars and in immediately available funds. Borrower hereby authorizes Administrative Agent to charge any of its demand deposit accounts for all interest, principal and fee

 

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payments that Borrower is obligated to pay pursuant to this Agreement and pursuant to fee arrangements with Administrative Agent and does not pay by the end of any applicable grace period. Administrative Agent shall distribute such payments to Lenders promptly upon receipt in like funds as received. Whenever any payment to be made becomes due and payable on a day that is not a Business Day, such payment may be made on the next succeeding Business Day and such extension of time shall in such case be included in computing interest on such payment.

 

5.2

Statements

Administrative Agent shall send Borrower statements of all amounts due hereunder; the statements shall be considered correct and conclusively binding, absent manifest error, on Borrower unless Borrower notifies Administrative Agent to the contrary within 30 days of receipt of any statement that Borrower claims to be incorrect. Borrower agrees that accounting entries made by Administrative Agent with respect to Borrower’s loan accounts shall constitute evidence of all Loans made under and payments made on any of the Facilities. Without limiting the methods by which Administrative Agent may otherwise be entitled by applicable law to make demand for payment of the Loans upon Borrower, Borrower agrees that any statement, invoice or payment notice from Administrative Agent to Borrower with respect to any principal or interest obligation of Borrower to Administrative Agent shall be deemed to be a demand for payment in accordance with the terms of such statement, invoice or payment notice. Under no circumstances shall a demand by Administrative Agent for partial payment of principal or interest or both be construed as a waiver by Administrative Agent of its right thereafter to demand and receive payment (in part or in full) of any remaining principal or interest obligation.

 

5.3

Book Entry Loan Account

Administrative Agent shall establish a book entry loan account for each of the Loans in which Administrative Agent will make debit entries of all Loans pursuant to the terms of this Agreement. Administrative Agent will also record in the applicable loan account, in accordance with customary banking practices, all interest and other charges, expenses and other items properly chargeable to Borrower, if any, together with all payments made by Borrower on account of the Indebtedness evidenced by Borrower’s respective loan accounts and all other sums credited to the respective loan accounts. The debit balance of Borrower’s respective loan accounts shall reflect the amount of Borrower’s Indebtedness to Lenders from time to time by reason of advances, charges, payments or credits.

 

5.4

Computations of Interest

All other computations of interest and fees that are computed on a per annum basis shall be based on a 360-day year for the actual number of days elapsed.

 

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5.5

Default Interest

Upon the occurrence and during the continuance of any Event of Default, Administrative Agent may, at its option upon notice to Borrower, raise the interest rate charged on the Loans to a rate of up to 2 percent per annum plus the interest rate that would otherwise be applicable thereto, from the date of the occurrence of the Event of Default until the Event of Default is cured or waived pursuant to the terms of this Agreement or, absent cure or waiver, until the Loans are repaid in full.

 

5.6

Maximum Interest Rate

Notwithstanding any provision contained herein or in the Notes, the total liability of Borrower for payment of interest pursuant hereto, including late charges, shall not exceed the maximum amount of interest permitted by applicable law to be charged, collected or received from Borrower; and if any payments by Borrower include interest in excess of that maximum amount, Administrative Agent shall apply the excess first to reduce the unpaid balance of the Loans, then to reduce the balance of any other Indebtedness of Borrower to Lenders. If there is no such Indebtedness, the excess shall be returned to Borrower.

 

5.7

Late Charge

If any payment of principal or interest required under any of the Loans is 15 days or more past due, Borrower will be charged a late charge of 5 percent of t