Exhibit 10.1
EXECUTION COPY
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
Dated as of May 27, 1999
TRUE NORTH COMMUNICATIONS, INC., a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
(collectively, the "Initial Lenders") party hereto and CITIBANK, N.A., as
administrative agent (together with any successor thereto appointed pursuant to
Article VII of the Existing Credit Agreement referred to below, the
"Administrative Agent") for the Lenders (as defined in the Existing Credit
Agreement referred to below), hereby agree as follows:
PRELIMINARY STATEMENTS
(1) The Borrower is party to a 364-Day Credit Agreement dated as of
May 29, 1998 (as amended, supplemented or otherwise modified from time to time
to (but not including) the date of this Amendment and Restatement, the "Existing
Credit Agreement") with the banks, financial institutions and other
institutional lenders party thereto and Citibank, N.A., as Administrative Agent
for the Lenders and such other lenders. Capitalized terms not otherwise defined
in this Amendment and Restatement shall have the same meanings as specified in
the Existing Credit Agreement.
(2) The parties to this Amendment and Restatement desire to amend
the Existing Credit Agreement as set forth herein and to restate the Existing
Credit Agreement in its entirety to read as set forth in the Existing Credit
Agreement with the following amendments.
(3) The Borrower has requested that the Lenders agree to extend
credit to it from time to time in an aggregate principal amount of up to
$75,000,000 for general corporate purposes of the Borrower and its Subsidiaries
not otherwise prohibited under the terms of this Agreement. The Lenders have
indicated their willingness to agree to extend credit to the Borrower from time
to time in such amount on the terms and conditions of this Amendment and
Restatement.
SECTION 1. Amendments to the Existing Credit Agreement. (a) Section
1.01 of the Existing Credit Agreement is, effective as of the date of this
Amendment and Restatement and subject to the satisfaction of the conditions
precedent set forth in Section 2, hereby amended by deleting the definitions of
"Applicable Margin", "Commitment" and "Revolver Termination Date" set forth
therein and replacing them, respectively, with the following new definitions
thereof:
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"Applicable Margin" means a percentage per annum equal to the
applicable percentage set forth below for the Performance Level set forth
below:
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Performance Base Rate Eurocurrency
Level Advances Rate Advances
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I 0.000% 0.525%
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II 0.000% 0.550%
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III 0.000% 0.625%
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The Applicable Margin for each Eurocurrency Rate Advance shall be
determined by reference to the Performance Level in effect from time to
time.
"Commitment" means, with respect to any Lender, the amount set forth
in US Dollars opposite such Lender's name on Schedule I hereto under the
caption "Commitment" or, if such Lender has entered into an Assignment and
Acceptance, the amount set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 8.07(d) or, if such Lender
has entered into an Assumption Agreement, the amount set forth as the
Commitment of such Lender in its Assumption Agreement, in each case as such
amount may be reduced pursuant to Section 2.05 or increased pursuant to
Section 2.16.
"Revolver Termination Date" means the earlier of (a) May 26, 2000,
subject to the extension thereof pursuant to Section 2.17, and (b) the date
of termination in whole of the aggregate Commitments pursuant to Section
2.05 or 6.01; provided, however, that the Revolver Termination Date of any
Lender that is a Non-Consenting Lender to any requested extension pursuant
to Section 2.17 shall be the Revolver Termination Date in effect
immediately prior to the applicable Extension Date for all purposes of this
Agreement.
(c) Schedule I to the Existing Credit Agreement is, effective as of
the date of this Amendment and Restatement and subject to the satisfaction of
the conditions precedent set forth in Section 2, deleted in its entirety and
replaced with Schedule I to this Amendment and Restatement.
SECTION 2. Conditions of Effectiveness of this Amendment and
Restatement. This Amendment and Restatement shall become effective as of the
date first above written (the "Restatement Effective Date") when and only if:
(a) The Administrative Agent shall have received counterparts of this
Amendment and Restatement executed by the Borrower and all of the Initial
Lenders or, as to any of the Initial Lenders, advice satisfactory to the
Administrative Agent that such Initial Lender has executed this Amendment
and Restatement.
(b) The Administrative Agent shall have received for the benefit of
each of the Initial Lenders a fee equal to 0.07% of the Commitment of each
Initial Lender.
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(c) The Administrative Agent shall have received on or before
the Restatement Effective Date the following, each dated such date and
(unless otherwise specified below) in form and substance satisfactory to
the Administrative Agent and in sufficient copies for each Initial Lender:
(i) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the name and true signatures of the
officers of the Borrower authorized to sign this Amendment and Restatement
and the Notes, if any, and the other documents to be delivered hereunder by
the Borrower.
(ii) A favorable opinion of the Assistant General Counsel of
the Borrower, in form and substance reasonably satisfactory to the Agent.
(c) The representations and warranties contained in Section 4.01
of the Existing Credit Agreement shall be correct on and as of the
Restatement Effective Date, before and after giving effect to the
Restatement Effective Date, as though made on and as of such date.
(d) No event shall have occurred and be continuing, or shall
occur as a result of the occurrence of the Restatement Effective Date, that
constitutes a Default.
SECTION 3. Reference to and Effect on the Existing Credit
Agreement and the Notes. (a) On and after the effectiveness of this Amendment
and Restatement, each reference in the Existing Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Existing Credit Agreement, and each reference in the Notes to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Existing Credit Agreement, shall mean and be a reference to the Existing Credit
Agreement, as amended by this Amendment and Restatement.
(b) The Existing Credit Agreement and the Notes, as specifically
amended by this Amendment and Restatement, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed.
(c) Without limiting any of the other provisions of the Existing
Credit Agreement, as amended by this Amendment and Restatement, any references
in the Existing Credit Agreement to the phrases "on the date hereof", "on the
date of this Agreement" or words of similar import shall mean and be a reference
to the date of the Existing Credit Agreement (which is May 29, 1998).
SECTION 4. Costs and Expenses. The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Administrative
Agent in connection with the preparation, execution, delivery and
administration, modification and amendment of this Amendment and Restatement,
the Notes and the other documents to be delivered hereunder (including, without
limitation, the reasonable and documented fees and expenses of counsel for the
Administrative Agent with respect hereto and thereto) in accordance with the
terms of Section 8.04 of the Existing Credit Agreement.
SECTION 5. Execution in Counterparts. This Amendment and
Restatement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute
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one and the same agreement. Delivery of an executed counterpart of a signature
page to this Amendment and Restatement by telecopier shall be effective as
delivery of a manually executed counterpart of this Amendment and Restatement.
SECTION 6. Governing Law. This Amendment and Restatement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
THE BORROWER
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TRUE NORTH COMMUNICATIONS INC.
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
THE AGENT
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CITIBANK, N.A.,
as Administrative Agent
By /s/ Xxxxxxx X. Xxx
--------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
THE INITIAL LENDERS
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CITIBANK, N.A.
By /s/ Xxxxxxx X. Xxx
--------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK
By /s/ Xxxxxx X. Xxx
--------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By /s/ Xxxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Deputy General Manager
BANQUE NATIONALE DE PARIS
By /s/ Xxxxxx Xxxxxx du Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx du Bocage
Title: Executive Vice President &
General Manager
THE NORTHERN TRUST COMPANY
By /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Commercial Banking Officer
FLEET BANK, N.A.
By /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President
SCHEDULE I TO THE AMENDMENT AND RESTATEMENT
COMMITMENTS AND APPLICABLE LENDING OFFICES
Name of Domestic Eurocurrency
Initial Lender Commitment Lending Office Lending Office
-------------- ---------- -------------- --------------
Citibank, N.A. $18,000,000 Two Penns Way, Xxx Xxxxx Xxx,
Xxxxx 000 Xxxxx 000
Xxx Xxxxxx, XX 00000 Xxx Xxxxxx XX 00000
Attn: Xxxx Xxxxxxx Attn: Xxxx Xxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Bank of America $10,500,000 000 Xxxxx XxXxxxx 000 Xxxxx XxXxxxx
National Trust Street, 11th Floor Street, 11th Floor
and Savings Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Association Attn: Xxxx Xxxxxxx Attn: Xxxx Xxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
The First $10,500,000 One First National One First National
National Bank Plaza, Suite 0000 0-00 Xxxxx, Xxxxx 0000 1-14
of Chicago Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx Attn: Xxxxxxx Xxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
The Chase $10,500,000 000 Xxxxx Xxxxxx, 000 Xxxxx Xxxxxx,
Xxxxxxxxx Bank 0xx Xxxxx 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxx Xxx Attn: Xxx Xxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
The Bank of $7,500,000 000 X. Xxxxxx Xxxxxx, 227 X. Xxxxxx Street,
Tokyo-Mitsubishi, Suite 2300 Suite 2300
Ltd., Chicago Chicago, IL 60606 Xxxxxxx, XX 00000
Branch Attn: Xxxxx Xxxxx Attn: Xxxxx Xxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Banque Nationle $6,000,000 000 Xxxxx XxXxxxx 000 Xxxxx XxXxxxx
xx Xxxxx Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Jo Xxxxx Xxxxxx Attn: Jo Xxxxx Xxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
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Name of Domestic Eurocurrency
Initial Lender Commitment Lending Office Lending Office
-------------- ---------- -------------- --------------
The Northern $6,000,000 00 Xxxxx XxXxxxx 00 Xxxxx XxXxxxx
Trust Company Street Street
Chicago, IL 60675 Xxxxxxx, XX 00000
Attn: Xxxxxxxx Teleak Attn: Xxxxxxxx Teleak
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Fleet Bank, N.A. $6,000,000 1185 Avenue of the 0000 Xxxxxx xx xxx
Xxxxxxxx Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxx Attn: Xxxxxx Xxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
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TOTAL OF $75,000,000
COMMITMENTS
